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Ohio State Law Journal (Moritz College of Law)
Ohio State Law Journal: Volume 57, Issue 5 (1996)
1996
"Punishment" and the Eighth Amendment
Landry, Thomas K.
Ohio State Law Journal, vol. 57, no. 5 (1996), 1607-1676.
http://hdl.handle.net/1811/64877
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"Punishment" and the Eighth Amendment
THOMAS
K. LANDRY*
Eighth Amendment doctrine may be headed for a showdown. The Supreme
Court has unduly softened the Amendment's central limitation: its applicability
to nothing but "punishments." 1 This prerequisite is finessed m cases involving
conditions of confinement and is ignored in cases involving use of force. As a
result, Eighth Amendment doctrine lacks a backbone of principle. This Article
offers a few doctrinal repairs that would restore punishment as a threshold
element m Eighth Amendment cases, and thus put sense back m the
interpretation and application of a great constitutional protection.
The Eighth Amendment-like so many other constitutional provisions2underwent dramatic liberalization during the twentieth century 3 That is good to
the extent that constitutional liberties have been made real in the lives of
ordinary citizens who formerly could look to the Constitution as a source only
of aspiration and not of protection. 4 But liberalization has its limits, and
*J.S.D. resident, Columbia Law School; LL.M., Harvard Law School; J.D., New
York Law School; B.S., Rutgers University. The author is an attorney with the law firm of
Wilmer, Cutler, & Pickering in Washington, D.C.
Thanks are due to the numerous people whose feedback played a part in the development
of tis Article, especially the Honorable Mary Johnson Lowe, Michael Dorf, Jennifer Elrod,
and Kimberly Potter.
I The Eighth Amendment states: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted." U.S. CoNsr. Amend. VIII.
2 Constitutional liberties arguably remained undeveloped until the middle of the century.
See, e.g., MARY ANN GLENDON, RIGHTs TALK: THE IMPOvERISHMENT OF POLIICAL
DIscouRsE 4-5 (1991) (describing process by which Supreme Court became preoccupied
with individual rights in middle of century); Archibald Cox, Storm over the Supreme Court,
In THE EVOLVING CONSIrTrON 3, 8-11 (Norman Dorsen ed., 1987) (describing Court's
increased attention to civil rights and civil liberties beginning in 1940s and 1950s). But the
process really can be traced back to the tam of the century. See Thomas K. Landry,
Unenumerated FederalRights: Avenues for ApplicationAgainst the States, 44 FLA. L. REV
219, 229-32 (1992) (explaining origins of doctrine of incorporation by which constitutional
rights were held applicable to the states).
3See Helling v. McKinney, 509 U.S. 25, 38-40 (1993) (Thomas, J., dissenting)
(recounting historical development of Eighth Amendment doctrine).
4 See Hendrik Hartog, The Constitution ofAspiration and "The Rights That Belong to Us
All," in THE CONSTmToN AND AMERICAN LnF 353 (David Thelen ed., 1988) (discussing
opposition in constitutional perspectives between Constitution of fixed meaning and
"constitutional rights consciousness" that subjects constitutional meaning to shifting
aspirations of Americans); Judge A. Leon Higginbotham, Jr., Foreword to GENNA R.
MCNEIL, GROuNDwORKc: CHARLES HAMILTON HousToN AND THE STRUGGLE FOR CIVIL
RIGHTs at xv, xvii (1983) (describing how work of advocate Charles Houston made
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[Vol. 57:1607
constitutional adjudication for the past quarter-century has been a process of
defining those limits-of staking out liberalization's claim. 5 Occasionally, the
Supreme Court has pulled up stakes and redefined the limits. 6 Adjustments
were inevitable in the face of the expansive "land grab" that liberalization
achieved. And adjustment remains necessary in Eighth Amendment doctrine: It
lacks textual mooring, coherence with the rest of the Constitution, and respect
for decisions that we the people have-and have not-made. 7 These problems
are especially destabilizing since our society has lost faith in liberal attitudes
Constitution "a living and more relevant document" to black Americans); Laurence H. Tribe
& Thomas K. Landry, Reflections on Constitution-Making, 8 AM. U. J. ITr'L L. & PoL'Y
627, 642-43 (1993) (suggesting that broad wording of constitutions fosters citizens' devotion).
Perhaps the most famous example is Frederick Douglass's belief that the original Constitution
prohibited slavery. See Frederick Douglass, Speech delivered m Glasgow, Scotland, Mar. 26,
1860, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery', in 2 THE LIFE
AND WRmIiNGS OF FREDERICK DOUGLASS 467 (Philip Foner ed., 1950).
5 See, e.g., Daniel J. Capra, Prisonersof Their Own Junsprudence: Fourth and Fifth
Amendment Cases in the Supreme Court, 36 VuL. L. REv 1267, 1321 (1991) ("[Tihe
Burger-Rehnquist Court has been able to limit Fourth Amendment protection by taking
advantage of certain Warren Court cases which left considerable room for further limitation
of personal rights."); George Deukmejian & Clifford K. Thompson, Jr., All Sail and No
Anchor-JudicialReview Under the Californua Constitution, 6 HASINGS CoNSr. L.Q. 975,
975 (1979) (noting "Burger Court limitations on Warren Court decisions"); Dr. Patricia A.
Lucie, White Rights As a Model for Black: Or-Who's Afraid of the Privilegesor Immunities
Clause?, 38 SYR. L. REv 859, 862 (1987) (asserting that Burger Court set limits on Warren
Court's recognition of unenumerated constitutional rights and refused most claim for
recognition of additional such rights). Professor Bruce Ackerman might characterize the
Warren, Burger, and Rehnquist Courts as engaged m the same enterprise: "codifying," or
reducing to specifics, a constitutional change that the people had ordered in the New Deal era.
See 1 BRUCE ACKERMAN, WE THE PEOPLE: FouNDAiONs 268, 288-90 (1991) (explaining
codification stage of Ackerman's theory of constitutional change).
6 See RcHARD A. POSNER, TE PROBLEMS OF JURISPRUDENCE 218 (1990) (stating that
Warren Court expanded rights and Burger Court lirmted rights); David Adamany, The
Supreme Court, in THE AMEmCAN COURTS: A CRrTICAL ASSESSMENT 5, 17 (John B. Gates
& Charles A. Johnson eds., 1991) ("The Rehnquist Court, especially since the addition of
Justice Anthony Kennedy, is further restricting liberties established during the Warren
Court."); cf. THE BURGER COURT: Tim CoUNTER-REvOLImoN THAT WASN'T at xiii
(Vincent Blasi ed., 1983) ("[Tihe Burger Court's work does not lend itself to any concise,
comprehensive characterization. In certain areas, the recent Court has consolidated the
landmark advances of the Warren years. In other areas, a mild retrenchment has taken
place."); Gene R. Nichol, Jr., An Activism of Ambivalence, 98 HARv. L. REV 315, 320
(1984-1985) (reviewing THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN'T
(1983)) ("The Burger Court has indirectly narrowed constitutional protections by limiting the
procedures available to vindicate them.").
7 See infra Parts II.B.2, II.C.2.
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PUNISHMENT
1609
toward criminality 8 That shift in attitude may properly find reflection m
judicial doctrne. 9 It is time to make sense of the Eighth Amendment.
The Eighth Amendment applies only to governmental action that can be
classified as "punishment." 10 And the condition of Eighth Amendment doctrine
is closely tied to the manner in which courts and commentators have
interpreted-or ignored-that word. It might seem strange that any interpretive
controversy could exist here. Punishment is a clear concept to anyone who has
ever recognized the authority of a parent, a religion, a government, or other
figure. A reasonable definition drawn from those life experiences might be that
punishment is a penalty deliberately imposed in response to unwanted
behavior. 11 For example, "twenty years m the penitentiary for armed robbery"
8 See George C. Thomas I & David Edelman, An Evaluation of Conservative Crime
Control Theology, 63 NoTRE DAME L. REv 123, 147 (1988) ("[Ihe influence of
conservative thinking has affected society's willingness to tax itself as well as the societal
attitude toward crime and criminals. Thus, legislatures are likely to increase prison sentences
and refuse to build new prisons at the same time."); John J. Dilulio, Jr., Editorial, The Value
of Prisons, WAL ST. J., May 13, 1992, at A14 ("Virtually every public opinion survey
shows that since 1974 the American people have become increasingly conservative on crime
and punishment.").
9 See Louis FISHER, CONSTITUTIONAL DiALoGuEs 12 (1988) (suggesting that the
Supreme Court "maintains its strength by steering a course that fits within the pernussible
limits of public opinion"); CHRopImE G. TIiEDEMAN, T)H UNw1rrrEN CoNsrrTMON OF
THE UNrrED STATES 43 (photo. reprint 1974) (G.P Putnam's Sons ed., 1890) (stating that
constitutional law is really found m judicial and legislative activity, and is "flexible, and
to the mutations of public opinion"); cf. Ruth Bader Ginsburg, Speaang in a
yields
Judicil Voice, 67 N.Y.U. L. REv 1185, 1208 (1992) (stating that Court can reinforce social
change but will encounter backlash if it attempts to lead m giant strides).
10 See
Farmer v. Brennan, 114 S. Ct. 1970, 1979-80 (1994) (explaining intent
requirements m Eighth Amendment doctrine as consequences of Amendment's limitation to
punishment); Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (distingushing between
punishment of pretrial detainees, wich is always prohibited, and punishment of convicts,
which is permissible if not cruel and unusual); John J. Phillips, Note, Jailhouse Shock:
Hudson v. McMillian and the Supreme Court's Flawed Interpretation of the Eighth
Amendment, 26 CONN. L. REv 355, 368 (1993) ("[A]s a threshold matter, the conduct or
activity complained of must be 'punishment' within the meaning of the Eighth Amendment.
After all, '[i]f a practice cannot be characterized as punishment, the Amendment does not
prohibit it, no matter how cruel and unusual it may be."') (quoting JAMES J. GOBERT & NEIL
P COHEN, RIGHTS oFPRISONERS § 11.01, at 310 (1981) (second alteration m original)).
I1 Cf. Helling v. McKinney, 509 U.S. 25, 38 (1993) (Thomas, J., dissenting).
At the time the Eighth Amendment was ratified, the word 'punishment' referred to the
penalty imposed for the commission of a crime. That is also the primary defintion of the
word today. As a legal term of art, 'punishment' has always meant a 'fine, penalty, or
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is a penalty ("twenty years m the penitentiary") imposed m response to ("for")
unwanted behavior ("armed robbery").
Yet modem Eighth Amendment discourse has consisted of a competition
among three flawed definitions of punishment. First is a stnctural definition,
which limits punishment to the terms of the penal statute and sentence and
excludes reference to conditions or events m prison. Second is an experiential
definition, which includes within punishment all that a prisoner experiences-all
prison conditions and all uses of force-regardless of any government agent's
intentions. Third is a subjectivist definition, which steers a middle course
between the first two and includes not only the terms of the penal statute and
sentence, but also those conditions or events m prison that are attributable to the
subjective intent of any government agent. This definition now commands a
majority on the Supreme Court.
The present Article advances a fourth alternative: a governmentalist
definition, which includes not only the terms of the penal statute and sentence,
but also those conditions or events m prison that are attributable to the punitive
intent of the government in its role as monopolist over the machinery of
punishment. In doctrinal terms, this definition entails three elements: (1) a
confinement inflicted upon a person by the authority of the law and the judgment and
sentence of a court, for some crane or offense committed by him.'
Id. (quoting BLAcK's LAW DICTIONARY 1234 (6th ed. 1990)) (citations and quotations
omitted); Wilson v. Seiter, 501 U.S. 294, 300 (1991) (characterizing the infliction of
punishment as "'a deliberate act intended to chastise or deter"') (quoting Duckworth v.
Franzen, 780 F.2d 645, 652 (7th Cir. 1985)); John Rawls, Two Concepts of Rules, 64 PHI.
REv 3 (1955).
I begin by defining the institution of punishment as follows: a person is said to suffer
punishment whenever he is legally deprived of some of the normal rights of a citizen on
the ground that he has violated a rule of law, the violation having been established by
trial according to the due process of law, provided that the deprivation is carried out by
the recognized legal authonties of the state, that the rule of law clearly specifies both the
offense and the attached penalty, that the courts construe statutes strictly, and that the
statute was on the books prior to the time of the offense.
Id. at 10.
Punishment is defined in a typical dictionary- "1. a. An act of punishing. b. The
condition of being punished. 2. A penalty inposed for wrongdoing. 3. Informal. Rough
handling; mistreatment." THE AMEMCAN HERrrAGE DICTIONARY OF THE ENGLISH
LANGUAGE 1060 (1976). The word "punish" is defined in the same source: "1. To subject
(someone) to penalty for a crime, fault, or misbehavior. 2. To inflict a penalty on a criminal
4. Informal. To
or wrongdoer for (an offense). 3. To handle roughly; injure; hurt
deplete (a stock or supply) heavily." Id.
1996]
PUNISHMENT
penalty, (2) inflicted for criminal conduct, (3) pursuant to regular processes of
governmental administration and thus attributable to the government m its role
as monopolist over punishment. In practical terms, this definition recognizes as
punishment all that a legislature or sentencer expects and intends a prisoner to
endure, including the physical setting of confinement and the quality and
quantity of life's daily incidents (e.g., food, clothing, and activities) over which
prisoners are derned choice. It does not include accidental, exigent, random, or
illegal injuries, whether inflicted by prison guards, fellow prisoners, or chance.
One commentator has suggested an approach that would yield similar
results, but that approach was different analytically and less developed
theoretically 12 And the Supreme Court has noted potential problems with its
own definition without pursuing any alternatives (much less developing
theoretical bases for them). 13 This Article picks up where those suggestions left
off.
Part I of the Article explains the three prevalent definitions of punishment
m Eighth Amendment discourse: the strictural definition, 14 the experiential
definition,1 5 and the subjectivist deflnition.16
Part II explains the problems with each definition. The strictural definition
reflects a stingy formalism and yields a stunted conception of a prison
sentence. 17 The other definitions are too permissive; they at most depend on the
intentions of individual prison officials and not on whether officials' actions
respond to criminal behavior or administer any fairly understood sentence. 1 8
The definitions do a disservice to the Constitution, to the prisoners who
undergo punishments, to the officials who set those punishments, and to the
public that needs to understand these matters and whose consent is the
foundation of our constitutional democracy.
Part III explains an alternative definition of punshment-a govenmentalist
definition-tied to the nature of government-inflicted punishment and thus
12 See Jeffrey D. Bukowsla, Comment, The Eighth Amendment and Onginal Intent:
Applying the ProhibitionAgainst Cruel and Unusual Punshments to Prison Deprivation
Cases Is Not Beyond the Bounds of History and Precedent, 99 DIcK. L. REv 419 (1995)
(recommending application of Eighth Amendment to conditions of confinement but not to use
of force).
13 See Hudson v. McMillian, 503 U.S. 1, 12 (1992) (noting issue but dismissing as
insubstantial for procedural and factual reasons); Witley v. Albers, 475 U.S. 312, 319
(1986) (recognizing that Eighth Amendment was being applied to "conduct that does not
purport to be punishment at all").
14
See infra text accompanying notes 29-35.
15 See infra text accompanying notes 36-57
16 See infra text accompanying notes 58-86.
17 See infra text accompanying notes 87-96.
18 See nfra text accompanying notes 97-184.
OHIO STATE LAW JOURNAL
[Vol. 57:1607
faithful to the premises of the Eighth Amendment.' 9 Prison officials' actions
should be considered punishment only when they are attributable to government
as part of the penalty designated in response to criminal behavior. Attribution
can be determined by asking whether actions are taken pursuant to regular
processes of the system for administering punishments. 20 This definition
provides a unitary meaning of punishment for the Eighth Amendment,
applicable alike to prison conditions and uses of force. Part I also addresses
several collateral issues: 42 U.S.C. § 19 8 3 ,21 the Ex Post Facto Clause, 2 2 and
prison discipline.
Part IV demonstrates that the current strain on the Eighth Amendment is
unnecessary because other provisions could be interpreted to give prisoners
much the same protection without doing violence to the constitutional text. 23
The Due Process Clauses, 24 the Fourth Amendment 25 and state tort and
criminal law 26 all would provide ample basis for remedying deprivations now
addressed at the expense of the Eighth Amendment. Current constitutional
doctrine thus does not necessarily reach wrong results; rather, it generally
reaches right results m the wrong way
Part V explains why reaching right results in the wrong way should
concern us. For one thing, judicial decisionmaking is partly a habit of mind,
and bad habits that are harmless in one doctrinal area may yet prove harmful in
another. 27 More important, the integrity of the decisionmaking process has
19 See infra text accompanying notes 185-287
20 See infra text accompanying notes 203-33.
21 42 U.S.C. § 1983 (1994).
22
U.S. CONST. art. I, § 10, cl. 1.
23
See infra text accompanying notes 288-323.
24 See infra text accompanying notes 291-303. The Due Process Clause of the Fifth
Amendment, which applies to the federal government, states m pertinent part: "No person
shall
be deprived of life, liberty, or property, without due process of law." U.S. CoNST.
amend. V The Due Process Clause of the Fourteenth Amendment, which applies to the state
governments, states in pertinent part: "[NIor shall any State deprive any person of life,
liberty, or property, without due process of law." U.S. CoNsr. amend. XIV.
25 See infra text accompanying notes 309-11. The Fourth Amendment states:
The right of the people to be secure intheir persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
U.S. CoNsr. amend. IV
26 See infra text accompanying notes 312-13.
27 See infra text following note 338.
PUNSHMENT
19961
consequences
for judicial legitimacy
This
1613
is especially true where
true
countermajoritanan provisions are involved, and perhaps nowhere more
28
criminals.
disfavored
justly
of
protection
Amendment's
than m the Eighth
I. "PUNISHMENT"-TODAY'S MENU OF THREE PREVAILING DEFINITIONS
Three alternative definitions of punishment dominate Eighth Amendment
discourse: the strictural definition, the experiential definition, and the
subjectivist definition.
A. The StrcturalDefinition
The strictural definition is that punishment includes only what a legislature
or sentencing court specifically prescribes. Punishment is treated as the
superficial intent of the sentencer, expressed m the language of the sentence as
pronounced. Little room remains for doctrine in this approach. Statutes and
sentences (e.g., "x years in prison") can be tested only for their facial civility
and proportionality-their superficial content as textual decrees-and not for
details of their actual execution. The Eighth Amendment thus limits legislatures
when they establish penalties and judges when they pronounce sentences in
particular cases,29 but it limits neither prison conditions nor the unauthorized
use of force.
According to the stricturalists, this definition held sway until Estelle v
Gamble30 m 1976. Earlier decisions applied the Eighth Amendment only to
abstract sentences-not to prison conditions and not to use of force. 31 Thus, the
Court of Appeals for the Fifth Circuit reasoned in 1934 that
28
See nfra text accompanying notes 341-51.
29 Of
course, state legislatures and judges could ignore the Eighth Amendment until the
Fourteenth Amendment extended it over them, or more accurately, until the Supreme Court
recognized as much m Robinson v. Californa,370 U.S. 660, 666 (1962).
30 429 U.S. 97 (1976).
31 See Hudson v. McMillian, 503 U.S. 1, 19-20 (1992) (Thomas, J., dissenting) (citing
cases for proposition that courts did not apply Eighth Amendment to prison conditions until
1976). Justice Thomas's dissent drew public criticism, see, e.g., Editorial, The Youngest,
Cruelest Justice, N.Y TIMEs, Feb. 27, 1992, at A24, but neither the majority nor critics
challenged Ins recitation of history.
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[t]he prison system of the United States is under the control of the Attorney
General and Superintendent of Prisons, and not of the District Courts. The
court has no power to interfere with the conduct of the prison or its discipline,
but only on habeas corpus to deliver from the prison those who are illegally
detained there. 32
Today, Justice Clarence Thomas is the most vocal supporter of the
strictural definition. He maintains that "judges or junes-but not jailersimpose 'punishment.' 33 For example, the Eighth Amendment cannot be
violated if inmates assault another inmate, even if prison officials could have
prevented it. Because an "unfortunate attack" 34 on an inmate is not "part of his
sentence,"
it does not "constitute 'punishment' under the Eighth
Amendment."-35
B. The ExperientialDefinition
The experiential definition is that punishment includes all conditions of
confinement and uses of force, regardless of any prison official's intent. This
definition sweeps a great deal within the Eighth Amendment's compass.
Estelle was the Court's first application of the Amendment to prison
conditions, and Whitley v Albers36 was the first application of the Amendment
to prison officials' use of force. Estelle did not even perceive an issue whether
inadequate
medical
treatment
constituted
punishment.
Rather,
Estelle
established a judicial test-a tool of judicial restraint, pragmatism, and
formalism-to determine whether the presumed punishment of inadequate
32
Platek v. Aderhold, 73 F.2d 173, 175 (5th Cir. 1934). Tins doctrine arguably should
have given way in 1947 when the Supreme Court decided Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459 (1947). The Court there rejected on the merits a prisoner's Eighth
Amendment claim that the State could not electrocute him a second time after a first attempt
failed by accident. See id. at 463-64. This claim arguably concerned the manner m which
prison officials admiustered the penalty rather than the electrocution sentence itself. Yet
courts continued their hands-off approach after Resweber See, e.g., Sutton v. Settle, 302
F.2d 286, 288 (8th Cir. 1962) (per cunan) ("Courts have uniforily held that supervision of
inmates of federal institutions rests with the proper administrative authorities and that courts
have no power to supervise the management and disciplinary rules of such institutions.").
Perhaps death was regarded as different even then. See Harmelin v Michigan, 501 U.S. 957,
994 (1991) (noting respects in which Court has held that "'death is different,' and ha[s]
imposed protections that the Constitution nowhere else provides").
33 Helling v. McKinney, 509 U.S. 25, 40 (1993) (Thomas, J., dissenting).
34
Farmer v. Brennan, 114 S. Ct. 1970, 1990 (1994) (Thomas, J., concurrng).
35
Id.
36 475 U.S. 312 (1986).
19961
PUNISHMENT
1615
medical care violated the Eighth Amendment. The joint opinion m Gregg v.
Georgia,37 a death penalty case, had defined Eighth Amendment violations as
"unnecessary and wanton infliction of pain." 38 Estelle held that in the context of
prison medical care, the Gregg standard would be satisfied only if prison
officials acted with "deliberate indifference. " 39 But no mention was made of
whether punishment was involved in the first place.
The Court at least perceived the punishment issue in Whitley But the result
was not much different. Despite recognizing that the use of force did "not
purport to be punishment at all,"40 the Court established a judicial test to
determine whether the nonpurported punishment violated the Eighth
Amendment. This time the Gregg standard would be satisfied only if prison
officials acted "'maliciously and sadistically for the very purpose of causing
harm"'41-a bow to the exigent circumstances in which the Court figured that
prison officials use force. 42
Together, Estelle and Wtley put the Court's stock in the experiential
definition, assuring that the Amendment would follow a prisoner from the
sentencing court to the penal institution and stand guard until the punishment
was over. This definition continues to be influential. Justice Blackmun
supported it with a passage in one of his last opinions-a concurrence in Farmer
v Brennan:43 "'Punishment' does not necessarily imply a culpable state of
mind on the part of an identifiable punisher. A prisoner may experience
punishment when he suffers 'severe, rough, or disastrous treatment,' regardless
of whether a state actor intended the cruel treatment to chastise or deter."44 In
prison-conditions cases, responsibility "inevitably is diffuse" 45 but "the
experience of the inmate is the same" 46 regardless of who is responsible for the
conditions. Thus, prisoners sentenced to the same amount of time nught
undergo different punishments depending on where they are inprisoned. One
prisoner rmght be placed in a "relatively safe, well-managed prison, complete
with tennis courts and cable television," 47 and the other m a prison
37 428 U.S. 153, 158-207 (1976)
38
(joint opinon of Stewart, Powell, & Stevens, JJ.).
Id.at 173.
429 U.S. at 104.
39 Estelle,
40 Whitley, 475 U.S. at 319.
41 Id. at 320-21 (quoting Johnson v.
42
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
See u.
43 114 S. Ct. 1970 (1994).
44 Id. at
1988 (Blackmun, J., concumng) (citation ormtted) (quoting WEBSTER's THIRD
NEW INTERNATIONAL DICTIONARY 1843 (1961)).
45 Id.
46Id.
47 Id.
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"characterized by rampant violence and terror." 48 These different conditions of
confinement, the Justice argued, should be recognized as resulting rn
"differ[ent] punishment[s]" for Eighth Amendment purposes. 49
In prison-conditions cases and use-of-force cases alike, the experiential
definition not only yields a let-it-all-m version of punishment, but rules out
pragmatic, subjective-intent requirements that limit judicial review of prison
administration. Justice Stevens has been the most consistent at this. Beginning
with Estelle, he opposed consideration of prison officials' subjective intent and
instead urged consideration merely of whether conditions were "cruel and
inhuman. "50 In Wilson v Setter,51 he joined three other Justices52 M opposing
any intent requirement in conditions-of-confinement cases. 53 And m Whitley v
Albers,54 he joined three others55 in opposing any intent requirementespecially a heightened intent requirement-m use-of-force cases. 56 The
experiential definition is consistent with such efforts to restrict the question to
57
whether an infliction was objectively unnecessary or wanton.
C. The Subjectivist Definition
The subjectivist definition currently enjoys a majority on the Supreme
Court. This majority found its voice in Whitley and Wilson, and embraces
subjective intent requirements. Whitley established the intent requirement for
use-of-force cases. Gerald Albers was serving a sentence in the Oregon prison
system (for what or how long we are not told in any of the court opimons). 58 A
48Id.
49 See id.
50
See Estelle v. Gamble, 429 U.S. 97, 117 (1976) (Stevens, J., dissenting); see also
Fanner v. Brennan, 114 S.Ct. 1970, 1989 (Stevens, J., concurring) ("I continue to believe
that a state official may inflict cruel and unusual punishment without any improper subjective
motivation
") (citations omitted). Most of the "liberal" Justices agreed m Estelle that a
minimal subjective "deliberate indifference" requirement was appropriate because
unintentional harm would not be unnecessary and wanton. See Estelle, 429 U.S. at 103-06.
51 501 U.S. 294 (1991).
52
Justices White, Marshall, and Blackmun.
53 See Wilson, 501 U.S. at 306 (Wite, J., concurrng).
54 475 U.S. 312 (1986).
55
Justices Marshall, Brennan, and Blacknun.
56
See Whitley, 475 U.S. at 328-30 (Marshall, J., dissenting); infra text accompanying
notes 58-60.
57
Justice Marshall's dissent m Whitley made no mention of the deliberate indifference
standard applicable to prison-conditions cases.
58
See Albers v. Whitley, 546 F Supp. 726 (D. Or. 1982), aff'd inpail, rev'd in part,
743 F.2d 1372 (9th Cir. 1984), rev'd, 475 U.S. 312 (1986).
19961
PUNISHMENT
prison guard shot Albers m the leg at the end of a prison disturbance. 59 The
Court held that a heightened intent requirement applied to use-of-force cases:
Cruel and unusual punishment occurred only if prison officials acted
"'maliciously and sadistically for the very purpose of causing harm. "6
Wilson subsequently established that the Estelle intent standard would be
applied in conditions-of-confinement cases generally 61 Pearly Wilson was
serving a sentence m the Oluo prison system (for what and how long we are not
told in any of the court opinions). 62 He challenged a variety of prison
conditions: "overcrowding, excessive noise, insufficient locker storage space,
inadequate heating and cooling, improper ventilation, unclean and inadequate
restrooms, unsanitary dining facilities and food preparation, and housing with
mentally and physically ill inmates." 63 The Court held that Estelle's deliberate
indifference requirement applied generally to such conditions of confinement
and not just to prison medical care. 64
Whtley and Wilson represented the subjectivists' first epiphanies on the
significance of the word "punishment" in the Eighth Amendment. The Court in
Estelle had introduced the deliberate indifference requirement as a proxy for the
substantive requirement of cruelty and unusualness and said nothing "of
pumshment. 65 Whitley's heightened intent requirement was based partly on the
same consideration and partly on the exigencies of prison security But the
Court added a new rationale: "To be cruel and unusual punishment, conduct
that does not purportto be punishment at all must involve more than ordinary
lack of due care for the prisoner's interests or safety ",66 One of the reasons for
59 See Whitley, 475 U.S. at 316-17
60 Id. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). The
Second Circuit m Johnson had used the malicious-and-sadistic test as a factor m determining
whether a substantive due process claim was stated.
61 See Wilson v. Seiter, 501 U.S. 294, 303 (1991).
62 See Wilson v. Selter, 893 F.2d 861 (6th Cir. 1990), vacated, 501 U.S. 294 (1991).
63 See Wilson, 501 U.S. at 296.
64 See id. at 303.
65
See Estelle v Gamble, 429 U.S. 97 (1976).
[A]n inadvertent failure to provide adequate medical care cannot be said to constitute 'an
unnecessary or wanton infliction of pain' or to be 'repugnant to the conscience of
mankind.'
In order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs. It is only such indifference that can offend 'evolving standards of decency' in
violation of the Eighth Amendment.
Id. at 105-06.
66 Whitley v. Albers, 475 U.S. 312, 319 (1976) (emphasis added).
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an intent requirement was thus to honor the Eighth Amendment's limitation to
punishment.
The Wilson Court elevated the punishment rationale to the primary
analytical basis for the intent requirement:
The source of the intent requrement is not the predilections of this Court, but
the Eighth Amendment itself, which bans only cruel and unusual punishment.
If the pain inflicted is not formally meted out as puishment by the statute or
the sentencing judge, some mental element must be attributed to the inflicting
officer before it can qualify 67
The subjectivists recently elaborated on the meaning of deliberate
indifference in Farmerv Brennan.68 Dee Farmer, an effeminate transsexual,
was serving a long sentence in federal prison for credit card fraud. 69 Although
Farmer had "overtly feminine characteristics," 70 he was preoperative, and
71
according to federal prison practice, was incarcerated with male prisoners.
Farmer alleged that he was beaten and raped by another inmate after two weeks
in the general population of the federal penitentiary to which he had been
transferred. 72 He claimed that prison officials knew that the facility was
dangerous and that he would be "particularly vulnerable." 73 Beating and rape
surely seem to be disproportionate, cruel and unusual punishment for the crime
of credit card fraud. 74 But it was another inmate, not prison officials, who
harmed Farmer. The question therefore concerned prison officials' deliberate
75
indifference, not active aggression.
67 Wilson v. Seiter, 501 U.S. 294, 300 (1991).
68 114 S. Ct. 1970 (1994).
69
See id. at 1974-75; Farmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993).
70 Farner v Brennan, 114
S. Ct. 1970, 1986 (Blackmun, J., concurring).
71 See Id. at 1975.
72 See id.
73 See It.
74 Cf. itd. at 1987 (Blackmun, J., concurring) ("Although formally sentenced to a term of
incarceration, many inmates discover that their punishment, even for nonviolent offenses like
credit-card fraud or tax evasion, degenerates into a reign of terror unmutigated by the
protection supposedly afforded by prison officials.").
75 See It. at 1975.
Tihe complaint alleged that respondents either transferred petitioner to USP-Terre
Haute or placed petitioner in its general population despite knowledge that the
penitentiary had a violent environment and a history of inmate assaults, and despite
knowledge that petitioner, as a transsexual who 'projects feminine characteristics,'
would be particularly vulnerable to sexual attack by some USP-Terre Haute inmates.
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PUNISHMENT
1619
The Court confirmed the punishment rationale for intent requirements:
"The Eighth Amendment does not outlaw cruel and unusual 'conditions', it
outlaws cruel and unusual 'punishments.'
[A]n official's failure to alleviate
a significant risk that he should have perceived but did not
cannot
be
condemned as the infliction of pumshment." '76 Thus, "deliberate indifference
serves under the Eighth Amendment to ensure that only inflictions of
punishment carry liability-77 The strictural and experiential definitions were
cast to the margins. Justice Thomas found himself alone in a concurrence
expressing the strictural view, 78 despite Justice Scalia's agreement with him just
two years earlier. 79 And Justices Blackmun and Stevens were left to express the
experiential view 80
Whitley, Wilson, and Farmer establish that punishment under current
doctrine means all that a legislature or sentencing court explicitly prescribes,
plus implicit or unprescribed pains ifthe official charged with their infliction
possesses a requisite intent as defined in those decisions. Specifically,
punishment includes pam experienced in prison after sentencing, but only if
officials act with a sufficiently culpable state of mind: subjective recklessness in
conditions-of-confinement cases, 81 and malicious and sadistic intent m use-offorce cases. 82 The decisions anchor the intent requirements in the word
"punishment." Those requirements are thus not just mechanisms for judicial
Id.
76
Id.at 1979.
77 Id. at 1981; see also id. at 1982 ("[P]nson officials who lacked knowledge of a risk
cannot be said to have inflicted punishment
"); id.
at 1980.
IT1he reasons for focusing on what a defendant's mental attitude actually was (or is),
rather than what it should have been (or should be), differ in the Eighth Amendment
context from that of the criminal law. Here, a subjective approach isolates those who
inflict punishment; there, it isolates those against whom punishment should be inflicted.
Id.
78
See Id. at 1990-91 (Thomas, J., concumrring).
See Hudson v. McMillian, 503 U.S. 1, 17 (1992) (Thomas, J., dissenting); Marjorie
Rifkln, Farmer v. Brennan.: Spotlight on an Obvious Risk of Rape in a Hidden World, 26
COLuM. HuM. RTs. L. REV 273, 289 (1995) (making same observation).
80 See Farmer v. Brennan, 114 S. Ct. 1970, 1986-89 (1994) (Blackmun, J.,
concurring); id. at 1989 (Stevens, J., concurring); supra text accompanying notes 36-57
81 See supra text accompanying notes 61-77
82
See supra text accompanying notes 58-60.
79
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deference to prison admimstrators, 83 or proxies for cruelty and unusualness, 84
but an authentic alternative expression of the textual reference to pumshment.8 5
Treating the intent requirements as inevitable aspects of the Eighth
Amendment's textual reference to punishment is a post-hoc rationalization.
Deliberate indifference originally served the cruelty and unusualness aspect of
86
the Eighth Amendment without mention of the punishment aspect. The
subjectivists' recognition of a punishment prerequisite was novel. "Better late
than never," you might say Unfortunately, the better saying would be "Close,
but no cigar."
II. PROBLEMS WiTH THE THREE PREVAILING DEFINmONS (NOTHING
GOOD ON THE MENU)
The prevailing definitions of punishment are flawed. They do a disservice
to the Constitution, to prisoners and prison officials, and to the public.
A. The Stnctural Definition
The strictural definition is too narrow It is myopic, stingy, and internally
contradictory. It is myopic 87 and stingy because it inquires only into the
statutory penalty and the sentence as pronounced. Those are abstractions-
facades. Real punishment is not words or a term of years, but an intended
experience. "Twenty years in the penitentiary" is impressive not just because
twenty years is a long time to spend in one place. It is impressive because we
83
See Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (grounding malicious-andsadistic requirement on deference to prison administrators' judgments about maintaining
security).
84 See id. at 320-21 (justifymg malicious-and-sadistic requirement as proper test for
whether actions are unnecessary and wanton); Estelle v. Gamble, 429 U.S. 97, 105-06
(1976) (justifying deliberate indifference requirement as proper test for whether actions are
unnecessary and wanton, or repugnant to the conscience of mankind, or offensive to evolving
standards of decency).
85
See Fanner, 114 S. Ct. at 1979-82; Wilson v. Seiter, 501 U.S. 294, 300 (1991);
Whitey, 475 U.S. at 312, 319. I have elsewhere developed a view of constitutional doctrine
as a body of alternative expressions of the original text. See Thomas K. Landry,
Constitutional Invention: A Patent Perspective, 25 RUTGERS L.J. 67, 74-85 (1993); f.
Farmer, 114 S. Ct. at 1970, 1980 (describing deliberate indifference standard as a "judicial
gloss").
86
See supra text accompanying note 65.
87 See Fanner, 114 S. Ct. at 1988 (Blacklnun, J., concurring) (describing Court's
doctrine as "myopic").
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PUNISHMENT
know-or have an idea-what that place called a penitentiary is like. We
88
know-or have an idea-what it would be like to be there. The Eighth
Amendment calculus cannot simply be an evaluation of the morality and
proportionality of a superficial sentence-"x years in prison." The nature of a
punishment of imprisonment depends on the terms and conditions of
imprisonment, just as the nature of a criminal offense depends on the facts of
the crime.
Legislatures, sentencing judges, and judges considering Eighth Amendment
claims should not be permitted to hide behind abstract pronouncements of
sentence. Their decisions are not just words written m codes or spoken in
courts. Their decisions are orders that a defendant shall or may be punished in
the penal system as it exists (or as it will exist, in case it is lawfully changed
during the prisoner's punishment). A sentence and any decision upholding its
execution imply all of the arrangements that the government has made for its
inmates: prison walls, barbed wire, guard towers, guns, searches and seizures,
meals, recreation time and facilities, and a system of rules governing inmate
behavior; the list goes on and on. When convicts are sentenced to
imprisonment, all of the arrangements are part of the meaning of their
punishment.
The strictural definition is internally contradictory because it champions
objectivity, yet masks the true mental state of legislatures, sentencing judges,
and judges considering Eighth Amendment claims. These people really do not
act upon pure abstractions after all. Rather, they have well-developed personal
conceptions of what prison is. These conceptions may be imaginary, but they
are no less reified. The product of imagination, after all, is an image.89 The
strictural definition insists that the Eighth Amendment forbids consideration of
prison conditions and other matters besides the abstract term of years, but in
truth decisionmakers consult their own beliefs and indulge their own
assumptions.
Consider Justice Thomas's opinons. 90 He insists that the Eighth
88
See Melvin Gutterman, The Contours of Eighth Amendment Pnson Junsprudence:
Condfitions of Confinement, 48 SMU L. REv 373, 397-98 (1995) ("It seems unlikely that
state judges are not familiar with conditions in their state prisons."). Professor Gutterman
makes the interesting point that prisoners enter plea agreements to get sent to preferred
facilities. See id. at 398. Courts thus sometimes specifically "countenanc[e] the conditions
of
confinement," wich therefore "[perhaps . should be viewed as expressly provided
m the sentence." Id.
89
The words "image" and "imagination" are both rooted in the Latin "imago,"
meaning an mutation or copy. See WEamR's Naw TwEi'mr CENT RY DICTIONARY 907
(2d ed. 1983).
90 See Fanner, 114 S. Ct. at 1990-91 (Thomas, J., concurring); Helling v. McKinney,
509 U.S. 25, 37-42 (1993) (Thomas, J., dissenting); Hudson v. McMillian, 503 U.S. 1, 17-
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Amendment does not "regulate[] prison conditions not imposed as part of a
sentence." 91 He reasons:
[P]nson was not a more congemal place in the early years of the Republic than
it is today; nor were our judges and commentators so naive as to be unaware of
the often harsh conditions of prison life. Rather, they simply did not conceive
of the Eighth Amendment as protecting inmates from harsh treatment. 92
Justice Thomas declares the Eighth Amendment irrelevant to prison
conditions. But he does so by irvoking personal beliefs about modem prison
conditions and comparing them to prison conditions of centuries ago. What
would he say if prison was a more congenial place in the early years of the
Republic? Would the opinions of ancestral judges and commentators still
control? His reasoning does not demonstrate that prison conditions are
categorically outside the scope of the Eighth Amendment; rather, it posits that
prison conditions are not cruel and unusual, which amounts to a substantive
response to the Eighth Amendment claim.
When imposing punishment, courts consider the facts of a crime, not just
the type of crime. 93 An especially cruel violation of a penal provision will
justify a far stiffer sentence than a crime that barely and technically violates the
29 (1992) (Thomas, J., dissenting).
91 Farmer-114 S. Ct. at 1991 (Thomas, J., concumng); see also Helling, 509 U.S. at
37-42 (Thomas, J., dissenting); Hudson, 503 U.S. at 18-20 (Thomas, J., dissenting).
92 Hudson, 503 U.S. at 19 (Thomas, J., dissenting).
93 See, e.g., United States v. Michalek, 54 F.3d 325, 336 (7th Cir. 1995) (Ferguson, J.,
concurring m part and dissenting m part) (describing the "structure of [Federal] Sentencing
Guidelines, whereby the core crime corresponds to the base offense level and the
enhancements correspond to the particular facts of the crime as it was committed by the
defendant"). See generally Stephen Breyer, The Federal Sentencing Guidelines and the Key
Compronuses Upon Wich They Rest, 17 HOFSrRA L. REV 1, 9-12 (1988) (explaining
operation of federal sentencing guidelines); David A. Hams, Justice Rationed in the Pursuit
of Efficiency: De Novo Trials in the Crnunal Courts, 24 CONN. L. REv 381, 411 (1992)
("[A] number of states and the federal government use sentencing guidelines that typically
give courts a range within which to sentence a defendant, based on facts about both the
offense and the defendant."); Ronald F Wright, Complexity and Distrust in Sentencing
Guidelines, 25 U.C. DAvis L. REv 617 (1992).
The typical unstructured sentencing statute will classify crimes according to seriousness,
provide wide ranges of possible sentences, and perhaps give the sentencing court a list of
facts and perspectives to consider, such as characteristics about the crime and other past
experiences of the defendant or certain objectives of criminal sentencing generally.
Id. at 626.
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PUNISHMENT
1623
same penal provision. 94 That makes sense. Not all assaults are alike, not all
armed robberies are alike, not all murders are alike. 95 Why then, when courts
consider Eighth Amendment claims, should the facts of prison conditions not be
taken into account? Not all prisons are alike. Courts must consider the facts of
imprisonment if crime and punishment are to be fairly weighed. 96
The stricturalists should abandon their disingenuous position that prison
conditions are not part of the punishment inflicted. They should admit that
prison conditions are fair game for an Eighth Amendment claim, and honestly
make their true case: that prison conditions are never cruel and unusual. They
rely on a disingenuous definition of punishment at the expense of open
discussion and doctrinal clarity
B. The ExpenentialDefinition
The experiential definition is too broad because it treats anything that a
prisoner undergoes-including all incidents of confinement and interpersonal
uses of force-as punishment under the Eighth Amendment. Punishment is a
penalty imposed in response to unwanted behavior. 97 Not all of a prisoner's
experiences can fairly be characterized as part of the government's response to
a prisoner's crime. 98 But this is irrelevant under an experiential definition. Such
hyperextension of the Eighth Amendment levels one of the dramatic peaks of
the Constitution, conflates the Amendment with other patches of the
constitutional text, and generally fails to take seriously the text and structure of
94 See, e.g., U.S. SENTENCING GUiDEUs MANuAL § 5K2.8 policy statement (1994).
If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the
victim, the court may increase the sentence above the guideline range to reflect the
nature of the conduct. Examples of extreme conduct include torture of a victim,
gratuitous infliction of injury, or prolonging of pain or humiliation.
Id.
95
See Breyer, supra note 93, at 9 (observing that "particular crimes may be committed
in different ways, which m the past ha[s] made, and still should make, an important difference
in terms of the punishment imposed").
96
See Gutterman, supra note 88, at 398 (suggesting that "[p]erhaps prison conditions
should be viewed as expressly provided m the sentence" so that "all conditions of
confinement are considered as authorized by the sentencing judge").
97 See supra text accompanying note 11.
98 Cf. Helling v. McKinney, 509 U.S. 25, 38 (1993) (Thomas, J., dissenting) (observing
that traditional understanding of punishment "[did] not encompass a prisoner's injuries that
bear no relation to his sentence").
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the Constitution. 99
The excess of the experiential definition is apparent from its implications.
Injuries suffered by accident, or at the hands of fellow prisoners, could be
regarded as prison conditions-punishment-subject to the Eighth Amendment.
And any use of force by prison officials would be regarded as punishment, no
matter how illegal or how unconnected to the prisoner's original crime. None
of the results comports with a common-sense understanding of punishment.
Experientialist attempts to counter the punishment prerequisite prove
downright disingenuous. For instance, Justice Blackmun m his Farmer v.
Brennan100 concurrence quoted from a dictionary that defined punishment as
"'severe, rough, or disastrous treatment."' 10 1 But the full entry for punishment
m that source reads:
1 : the act of punishing :the infliction of a penalty 2 a : retributive suffering,
pain, or loss : PENALTY
b : a penalty inflicted by a court of justice on a
convicted offender : a penalty for an offense and for reformation and
prevention; broadly : any damage or pain inflicted on an offender through
judicial procedure amiung at either prevention, retribution, or reformationcompare CRUEL AND UNUSUAL PUNISHMENT 3 : severe, rough, or
102
disastrous treatment
Justice Blackmun thus selected an obviously less relevant definition of
punishment than hIs own source offered and conveniently omitted mention of
the more relevant, more limited definition. That would be bad as scholarshup; it
is worse as judging.
Dictionaries contemporaneous with the adoption of the Bill of Rights are of
no greater help to the experientialist position. For instance, Samuel Johnson's A
Dictionary of the English Language defined punishment simply as: "Any
103
infliction imposed in vengeance of a crime."
99 Cf. Laurence H. Tribe, Talang Text and Structure Senously: Reflections on FreeForm Method in ConstitutionalInterpretation, 108 HARv L. Rnv 1221, 1237 (1995) (urging
respect for the Constitution as a "complex system whose parts fit together into a
multidimensional whole"). For additional consideration of Professor Tribe's approach and its
relation to the ideas presented here, see infratext accompanying notes 330-37
100 114 S. Ct. 1970 (1994).
101 Id. at 1988 (Blackmun, J., concurring) (quoting WEB iE's THIRD NEw
INTERNAnONAL
DICTIONARY 1843 (1961)).
102 WEBsT'S THnD NEw INTERNATIONAL DiCTIONARY 1843 (1961).
103 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGuSH LANGUAGE (London, W
Strahan 1773). There was no significant change in tis understanding between the adoption of
the Bill of Rights and the adoption of the Fourteenth Amendment (which is the basis for
applying the Eighth Amendment to the states, see Robinson v. California, 370 U.S. 660, 666
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PUNISHMENT
The degree to which an experientialist definition of punishment has gamed
currency on the Supreme Court is debatable. Where use of force is concerned,
the Court more clearly accepts an experientialist definition of punishment. A
majority of the Court consistently applies the Eighth Amendment to use of force
by prison officials, and ignores the issue of punishment. 104
Where prison conditions are at issue, the Court at first did not recognize the
issue of pumshment °5 and appeared to adopt an experientialist definition. But
the Court later limited the Eighth Amendment's reach to conditions caused by
prison officials acting with a minimum level of subjective intent and tied that
limitation to the Amendment's punishment requirement. 1°6 Although the
majority thus departed from an experientialist definition, some Justices
continued to hum the tune, if not sing the words, of the old song. Justice
Stevens, for example, continued to argue that the subjective intent of prison
officials is irrelevant to whether cruel and unusual punishment is inflicted. 10 7
And other Justices continued to lend rhetorical support to that position, despite
ultimately accepting an intent requirement. 108
(1962)). Punishment is defined in an 1878 edition of Worcester's dictionary simply as "[tihe
act of punishing; any infliction, suffering, or pain, umposed on one who has committed a fault
or crime, or has neglected the performance of a required act; a penalty; correction." JOSEPH
E. WoRcEsrE, A DIcTONARY OF TiHE ENGLISH LANGUAGE 1155 (Philadelphia, J.B.
Lippincott & Co. 1878). That dictionary defines punish as "1. To afflict with pain, loss,
confinement, death, or other penalty, for some fault or crime; to chastise; to correct; to
2. To reward, or take vengeance on, by punishing the offender." Id.
castigate; to chasten.
104 See, e.g., Hudson v. McMillian, 503 U.S. 1 (1992); Whitley v. Albers, 475 U.S.
312(1986).
105 See supra text accompanying notes 36-39 (explaining that Estelle v. Gamble, 429
U.S. 97 (1976), extended deliberate indifference standard to prison-conditions cases without
questioning whether prison doctor's alleged negligence constituted punishment).
106The Court laid down the law on prison conditions mWilson v. Seiter, 501 U.S. 294
(1991), and Farmerv. Brennan, 114 S. Ct. 1970 (1994). Wilson requires prisoners to show
that conditions result from prison officials' deliberate indifference, see Wilson, 501 U.S. at
303, and Farmerdefines deliberate indifference as equal to criminal recklessness: disregard of
a serious risk about wich the officials had actual knowledge (as opposed to a risk about
which the officials merely should have known), see Fanner,114 S. Ct. at 1978-80.
107 See, e.g., Farmer, 114 S. Ct. at 1989-90 (Stevens, J., concurring) (joining
majority's conclusion because it is fathfil to Court's precedents, but reiterating position that
intent is irrelevant); Estelle, 429 U.S. at 116 n.13 (Stevens, J., dissenting) (asserting that
prison doctor's negligence could constitute cruel and unusual punishment because government
has obligation to provide competent medical care to prisoners).
108 Justice White and others in Wilson argued that "[ilnhumane prison conditions often
are the result of cumulative actions and mactions by numerous officials inside and outside a
prison," and "intent simply is not very meaningful when considering a challenge to an
institution, such as a prison system." Wilson, 501 U.S. at 310 (White, J., concurring).
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To be fair, however, opposition to a subjective intent requirement might
not indicate adherence to a true experientialist definition. Even Justice Stevens
appears to place some limitations on the prison experiences that count as
punishment.10 9 And the Justices who sought to limit the subjective intent
requirement in Wilson and Farmerwere the same ones who agreed in Estelle
that accidental harm could not be cruel and unusual punishment. 110 Indeed, that
Similarly, Justice Blackinun's concurrence m Farmer contains numerous passages that
support an experiential reading. See supra text accompanying notes 43-49; see also Farmer,
114 S. Ct. at 1988 (Blacknun, J., concurring) (quoting The Supreme Court-Leading Cases,
105 HARV L. REv 177, 243 (1991)) ("'[State-sanctioned punishment consists not so much
of specific acts attributable to individual state officials, but more of a cumulative
agglomeration of action (and inaction) on an institutional level."'). Commentators have
presented similar ideas. See, e.g., Gutterman, supra note 88, at 395 ("The particularized
misperceives the nature of staterequirement of subjective deliberate indifference
[Poor conditions] may arise from legislative neglect rather than
sanctioned punishment.
prison policy. The legislature, judiciary, and correctional personnel are all components of a
continuous system of administration of justice.").
The concern about identifying responsible officials is unconvincing. As towering as the
criminal justice system might be, it is nonetheless run by individuals who can be identified
and whose decisions and intentions can be evaluated. Government actors responsible for
prison conditions are probably not hard to identify Prison conditions generally arise from the
actions or inactions of one government agent or another: the maintenance employee who sets
the temperature too low, the purchasing agent who supplies beds that are too small, or the
architect who designs a ceiling that collapses. Such conditions could be traced to a responsible
governmental actor. It is thus no surprise that none of the Court's conditions-of-confinement
decisions has rejected a prisoner's complaint for failure to identify a responsible government
official. Cases where the prisoner's claim failed were handled on the basis of what the official
did, not the official's anonymity See, e.g., Estelle, 429 U.S. at 104-05 (explaining that
indifference of prison doctors or guards to medical needs may violate Eighth Amendment).
109 See Estelle, 429 U.S. at 116 n.13 (Stevens, J., dissenting).
Of course, not every instance of improper health care violates the Eighth Amendment.
Like the rest of us, prisoners must take the risk that a competent, diligent physician will
make an error. Such an error may give rise to a tort claim but not necessarily to a
constitutional claim. But when the State adds to this risk, as by providing a physician
who does not meet nmmuum standards of competence or diligence or who cannot give
adequate care because of an excessive caseload or inadequate facilities, then the prisoner
may suffer from a breach of the State's constitutional duty.
Id. (Stevens, J., dissenting).
1i0 See id. at 105 ("An accident, although it may produce added anguish, is not on that
basis alone to be characterized as wanton infliction of unnecessary pain."). The Justices who
sought to limit the subjective intent requirement m Wilson were Justices White, Marshall,
Blacknun, and Stevens. See Wilson, 501 U.S. at 295. Only Justice Stevens dissented from
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PUNISHMENT
1627
was old hat,1 11 and their language m Wilson and Farmer did not explicitly
recant the accepted Eighth Amendment status of accidental harm. 112 The
experientialist definition's currency in conditions-of-confinement cases appears
to have been more rhetorical than doctrinal.
In any event, there are three major problems with an expenentialist
definition in conditions-of-confinement and use-of-force cases alike. First, it
does not comport with any ordinary understanding of the word punishment.
Second, such punishments cannot rationally be analyzed under Eighth
Amendment doctrine. Third, treating interpersonal uses of force as punishment
under the Eighth Amendment disrespects the solemn nature of governmental
punishment for crime.
1. The Text
First is the simple problem of text: No ordinary sense of the word
punishment includes inflictions that are unrelated to prior wrongdoing. In
conditions cases, truly accidental harm is just that: accidental. It has nothing to
do with responding to the prisoner's crime and therefore cannot fairly be
characterized as pumshment. 113 The same goes for other "conditions" like
unpredictable attacks by other inmates or the contraction of a sexually
transmitted disease through voluntary sexual conduct.
Similarly, use of force similarly cannot fairly be characterized as
punishment. For example, consider Hudson v McMillian.114 Keith Hudson was
serving a twenty-year sentence in the Louisiana prison system for armed
Estelle on the ground that intent was irrelevant, although it might be significant that Justice
Blacknun concurred without opinion. See Estelle, 429 U.S. at 108, 116-17.
111 The Estelle Court relied on Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
(1947), which rejected an Eighth Amendment claim for a second attempt at electrocution after
a first attempt failed because of an "unforeseeable accident." Id. at 464. An interesting point
about Estelle is that the prisoner claimed cruel and unusual punishment based on negligent
medical care, but not based on what caused hum to need that care: A bale of cotton fell on him
while he was unloading a truck as part of his prison labor. See Estelle, 429 U.S. at 99. If
intent were truly irrelevant, that injury presumably would be considered part of the
punishment and subject to the Eighth Amendment.
112
The majority opinions m Farmer and Wilson referred to accidents but drew no
response from those who had lent support to an experientialist definition. See Farmer v.
Brennan, 114 S. Ct. 1970, 1980 (1994); Wilson, 501 U.S. at 297-98, 300.
113 An "accident" may result from dangerous conditions that are established or
maintained out of enmity for prisoners. Such inflictions are better termed "punishment" than
"accident."
114 503
U.S. 1 (1992).
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robbery. 1 15 He and a neighboring prisoner argued m the wee hours of October
30, 1983 when Hudson refused to stop washing his clothes in his toilet
(presumably a noisy activity), 116 and was reprimanded by a guard, Jack
McMillian. 17 Hudson and McMillian then argued' 18 McMillian and another
guard handcuffed and shackled Hudson to take him to an isolation cell. 1 9 On
the way, they beat him, causing the following injuries: minor bruises; swelling
of the face, mouth, and lip; loosened teeth; and damage to a partial dental
plate. 120
The Court applied the Eighth Amendment despite recognizing that the
beating might not have been "punishment" in any ordinary sense of the
word.12 1 Although the Court noted conflicting precedents on whether the
unauthorized use of force is punishment, 122 it gave short shrift to the subject
and indicated that it thought Hudson's beating was indeed pumshment. 123 The
Court explained that the guards also beat the other prisoner (with whom
115
See David Margolick, From a Lonely Prison Cell, an Inmate Wins an Important
Victory for CivilLiberties, N.Y TIMES, Mar. 6, 1992, at B8.
116 There was "conflicting testimony about almost all aspects of the case," Hudson
v McMillian, No. 83-1385-A, slip op. at 25 (M.D. La. Apr. 30, 1987), and no court
ever took a position on how the trouble actually started. But the neighboring inmate
gave his account while testifying on Hudson's behalf, see id. at 20-21, and the Solicitor
General's office essentially agreed in its brief supporting Hudson before the Supreme
Court, see Brief for the United Sates as Amicus Curiae Supporting Petitioner at 2,
Hudson v McMillian, 503 U.S. 1 (1992) (No. 90-6531) (hereinafter Hudson Brief).
117 See Hudson v McMillian, No. 83-1385-A, slip op. at 21 (M.D. La. Apr. 30,
1987); Hudson Brief, at 2; see also Lynn S. Branham, Significant Versus Insignificant
Beatings:Does the Eighth Amendment Draw such a Distinction?, 1991-92 PREvImW OF
U.S. SUP CT. CASEs 69, 104.
118 See Hudson, No. 83-1385-A, slip op. at 21, Hudson Brief, at 2; See also
Branham, supra note 117 at 104.
119 See Margolick, supra note 115, at B8.
120
See Id.
121 See Hudson, 503 U.S. at 11-12 (rejecting argument that beating was not
punishment); see also supra text accompanying note 11 (suggesting ordinary definition of
punishment: penalty imposed m response to unwanted behavior).
122
See Hudson, 503 U.S. at 11-12 (citing George v. Evans, 633 F.2d 413, 416 (5th
Cir. 1980) ("[A] single, unauthorized assault by a guard does not constitute cruel and unusual
"); Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973) ("[Allthough a
punishment
spontaneous attack by a guard is 'cruel' and, we hope, 'unusual,' it does not fit any ordinary
concept of 'punishment."'). But see Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.
1985) ("If a guard decided to supplement a prisoner's official punishment by beating him, this
would be punishment
12 3
")).
See Hudson, 503 U.S. at 12. The Court also gave procedural reasons: The question
about authorized punishment had not been raised m the circuit court and was not the subject of
the Court's grant of ceruoran. See id.
19961
PUNISHMENT
Hudson had argued), thus suggesting a pattern of behavior as opposed to an
isolated mcident, 124 and that the guards' supervisor expressly condoned the
beatings.
125
Justice Thomas, in dissent, observed:
While granting petitioner relief on his Eighth Amendment claim, the Court
leaves open the issue whether isolated and unauthorized acts are "punishment"
at all. This will, of course, be the critical question m future cases of this type.
If we ultimately decide that isolated and unauthorized acts are not
"punishment," then today's decision is a dead letter. That anomaly simply
highlights the artificiality of applying the Eighth Amendment to prisoner
grievances, whether caused by the random misdeeds of prison officials or by
126
official policy.
This point is quite serious, and may eventually garner Justice Thomas partial
vindication 27 in spite of the fierce criticism that Is dissent drew 128 Hudson
was not punished in any normal sense of the word 129-and the word's use m
the Eighth Amendment is nothing if not normal.
2. Square Peg, Round Hole
The second major problem is that the experiential definition yields
"punishments" that are impossible to analyze sensibly under settled modes of
Eighth Amendment analysis. Cruel and unusual punishments have
124
See id.
125 See Id.
126
Id. at 22 n.2 (Thomas, J., dissenting).
127 For reasons already discussed, see supra text accompanying notes 89-96, Justice
Thomas's view suffers from its own deficiencies.
128
See supra note 31 and accompanying text.
129 Cf. Phillips, supra note 10, at 390 (describing various forms of contact with
prisoners that do not qualify as punishment).
OHIO STATE LAW JOURNAL
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been divided into three categories: 130 (1) per se barbarity, 13 ' (2)
disproportionality, 132 and (3) unpunishable cnrnes. 133 Under which of these
benchmarks are conditions of confinement and use of force cruel and unusual?
The third benchmark can be ignored 134 while the first two pose interesting
135
challenges to the Court's reasontrg.
130 See Ingraham
v. Wright, 430 U.S. 651 (1977).
Mhe Cruel and Unusual Punishments Clause circumscribes the criminal process in three
ways: First, it limits the kinds of punishment that can be imposed on those convicted of
crimes; second, it proscribes punishment grossly disproportionate to the seventy of the
crime; and third, it imposes substantive limits on what can be made criminal and
punished as such.
Id. at 667 (citations ormtted); Estelle v Gamble, 429 U.S. 97, 102-03 & n.7 (1976) (similar
categorization).
131 See, e.g., In re Kemmiler, 136 U.S. 436, 447 (1890) ("Punishments are cruel when
they involve torture or a lingering death; but the punishment of death is not cruel, within the
meaning of that word as used in the Constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of life."); Anthony F Granucci,
Nor Cruel and Unusual Pumshments Inflicted: The OnginalMeamng, 57 CAL. L. REv 839,
839, 842, 865 (1969) (explaining that longstanding interpretation of cruel and unusual
punishments in United States was limited to barbarity and torture, but that this was based on
misunderstanding of prerevolutionary English law). The Court has occasionally described this
category of punishments as including "more than physically barbarous punishments," Estelle
v. Gamble, 429 U.S. 97, 102 (1976), because the standard is an evolving one. See id.
(quoting Trop v Dulles, 356 U.S. 86, 101 (1958)). Tins is a petty distiction-unnecessary if
barbarity is itself simply understood as an evolving concept to be determined according to
current values. Thus, unnecessary and wanton infliction of pam can easily be understood as a
form of barbarity, although the Court might treat it as a separate category of per se
unconstitutional punishment. See u. at 103.
132 See, e.g., Solem v. Helm, 463 U.S. 277 (1983) (invalidating life unipnsonment
without parole for seventh nonviolent felony conviction); Rummel v Estelle, 445 U.S. 263
(1980) (upholding life imprisonment, with possibility of parole, for third nonviolent felony
conviction); Weems v. United States, 217 U.S. 349, 367, 368, 381 (1910) (invalidating
fifteen years' nprisonment at painful labor in chains and shackles, followed by life under
governmental supervision, for falsification of public document). The specifics of
proportionality review are in flux; the Court was unable to reach a majority in its last decision
on the subject. See Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding life imprisonment
for first offense of possessing 672 grams of cocaine).
133 See, e.g., Robinson v. California, 370 U.S. 660 (1962) (invalidating criminal
punishment of narcotics addiction).
134 The third category is "to be applied sparingly," see Ingraham, 430 U.S. at 667, and
does not relate to the interpretations of punishment that are the subject of this Article.
135 One might question whether these three categories are or should be exclusive. On the
19961
PUNISHMENT
a. Per Se Barbarity
Is an accident or other unpredictable development a barbarous-per-se prison
condition? Conditions may indeed be barbarous, and it is tis ground rather
than disproportionality that supports a finding of unconstitutionality in the
typical conditions-of-confinement case. But the concept of barbarity is stretched
beyond its limit when applied to accidents, unpredictable inmate attacks, and
the like. Barbarity is a strong word and implies a rather damnable level of intent
that is simply not present in such cases.
Is use of force barbarous per se? Surely not. The Court has never suggested
that corporal punishment is per se unconstitutional. 136 And its decisions give
few practical indications of how much force may be used in punishment
consistent with the Eighth Amendment. Some decisions catalog in dicta a few of
the primitive punishments that the Framers had in mind: "draw[ing] or
dragg[ing] to the place of execution, in treason", 137 "embowell[ing] alive,
behead[ing] and quarter[ing], in high treason"; 138 "public dissection in
other hand, one might question whether any such set of benchmarks is truly distinct, or
whether all of them really boil down to one: proportionality. Barbarous punishments and
unpumshable cnimes can be understood as just opposite kinds of extreme proportionality:
barbarous punishments being punishments that are too great for any crime, and unpunishable
crimes being crimes for wluch any puishment is too great. Cf STEPmEN NATHANSON, AN
EYE FOR AN EYE? THE MORAIrY OF PUNIsHING BY DEATH 76 (1987).
[Proportional retributivism] does not require that we treat those guilty of barbaric crimes
barbarically. This is because we can set the upper limits of the punishment scale so as to
exclude truly barbaric punishments
mhe proportionality view is genuinely
general, providing a way of handling all crimes. Finally, it does justice to our ordinary
belief that certain punishments are unjust because they are too severe or too lenient for
the crime committed.
Id. This understanding admittedly may be incomplete; perhaps we resist barbarous
punishments
to avoid debasing ourselves, even if the punishment seems to fit the crime.
136
The Court in Ingraham rejected a claim against corporal punishment of public school
students, but that was because "[tihe prisoner and the schoolchild stand in wholly different
circumstances." Ingraham, 430 U.S. at 669. Prisoners are completely at the mercy of
government, while schoolchildren may return home and schools are subject to community
supervision. See d. at 670. The Court did not suggest that corporal punishment-paddling, in
that case-would not qualify as punishment under the Eighth Amendment.
137
Wilkerson v. Utah, 99 U.S. 130, 135 (1878) (citing 4 WiLiAM BLACKsToNE,
CoMMEmARms *370).
138 Id.
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OHIO STATE LAW JOURNAL
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murder"; 139 "burning alive in treason committed by a female";
14°
and
"crucifixion, breaking on the wheel, or the like. ' 14 1 None have suggested that
force may never be applied. And the Court is not lily-livered: It upholds the
death penalty in various forms and through various procedures. 142 Other courts
have rarely applied the Eighth Amendment to statutorily prescribed physical
punishments short of death, and have given little more indication about the
limits.1 43 The bottom line is that whether a use of force m punishment is
barbarous depends on its particulars. Moreover, per se barbarity is a polar test:
A punishment is either impermissibly barbarous or not. The set of cases in
which the Court addresses the issue of barbarity will inevitably comprise a
subset of cases involving punishments that are barbaric and a remainder of
cases involving punishments that are not barbaric. And the punishments that are
barbaric will be harsher than those that are not.
These simple principles indicate that the Court in its two use-of-force
decisions-Whitley 144 and Hudson145-did not rely on per se barbarity as the
139 Id.
140 Id.
141 In re Kemmler, 136 U.S. 436, 446 (1890); see also Granucci, supra note 131, at
862-65 (quoting BLACKSTONE, supra note 137, at *369-72, and speculating that Framers
might have misread Blackstone's catalog of punishments as objects of Eighth Amendment's
English antecedents).
142 See, e.g., Michael Vitiello, Payne v. Tennessee: A "Stunmng Ipse Dixit", 8 NOTRE
DAME J.L. ETHIcs & PuB. PoL'Y 165, 234-35 (1994) ("The Court has upheld various state
statutes that allow the imposition of the death penalty based on the state's showing of
aggravating circumstances."); Stephanie 0. Joy, Casenote, 4 SETON HALL CONST. L.J. 361,
385-86 & n.112 (1993) (noting Supreme Court's validation of punishments of electrocution
and shooting, and circit courts' validation of punishments of hanging and lethal gas). Perhaps
few limits would seem to exist if death may be inflicted, save perhaps a prohibition of
lingering and painful torture. Ironically, Justice Scalia's position is that proportionality review
is inappropriate except in capital cases, precisely because death is different. See supra note
32.
143 See Jackson v. United States, 102 F 473, 487-88 (9th Cir. 1900) (upholding
punishment of ten years at hard labor in penitentiary, but noting that "there may be
exceptional cases, in relation to the whipping post, pillory, or other extreme, isolated, and
exceptional cases, where the courts have
held the sentence to be in violation of the
provisions of the constitution"); Balser v. State, 195 A.2d 757 (Del. 1963) (upholding
wupping-twenty lashes-plus twenty-five years in prison, a $500 fine, and costs of
prosecution, as punishment for robbery); State v. Cannon, 190 A.2d 514 (Del. 1963)
(upholding whipping as punishment for various crimes); Garcia v. Temtory, 1 N.M. 415
(1869) (upholding whipping-flurty to sixty lashes on bare back-as punshment for animal
theft).14 4
Whitley v. Albers, 475 U.S. 312 (1986).
145 Hudson v. McMillian, 503 U.S. 1 (1992).
19961
PUNISHtMENT
1633
basis for decision. The prisoner in Whitley suffered a shotgun blast to his leg.146
The prisoner m Hudson suffered punching and kicking. 147 Yet, according to the
Court, the "punishment" m Whitley did not violate the Eighth Amendment and
the "punishment" m Hudson did. An honest barbarity test would suggest
opposite results and does not explain the Court's use-of-force decisions.
b. Disproportionality
The exact test for proportionality is m flux. 148 At a minimum, a majority of
the Court would probably agree that grossly disproportionate sentences are
unconstitutional. 149
Disproportionality is analysis is feasible m conditions-of confinement cases,
even those involving accidental or otherwise unpredictable "conditions" of
confinement. The harm from such conditions could be compared to the gravity
of a prisoner's original offense, and a decision could be reached. There are
problems with the experiential definition of punishment, but thm is not one of
them.
Disproportionality analysis harder to fathom in use-of-force cases. Can use
of force be unconstitutionally disproportionate? That depends on the offense.
Proportionality is easy enough to understand when it involves comparing crime
and sentence. In prison use-of-force cases, however, identifying the relevant
crime poses a problem. What is being punished? Force is often used m
response to something a prisoner does while in prison, not m response to the
crime that originally led to imprisonment.
Consider Whitley and Hudson again. The prisoner in Whitley was caught up
in a prison disturbance. 150 He was shot m the knee toward the end of guards'
475 U.S. at 316-17
7 Hudson, 503 U.S. at 4.
14 8
See Harmelin v. Michigan, 501 U.S. 957 (1991). Seven Justices m Harmelin agreed
that the Eighth Amendment warrants some degree of proportionality review, but they
disagreed on the proper extent of that review. See also supranote 132 and accompanying text.
149
See Id. at 1001 (Kennedy, J., concurring) ("The Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it forbids only extreme sentences
146 Whitley,
14
that are 'grossly disproportionate' to the crime."). Justices O'Connor and Souter joined
Justice Kennedy. Justices White, Blackmun, Stevens, and Marshall stuck to the test
announced in Solem v. Helm, 463 U.S. 277 (1983), which they interpreted as requiring gross
disproportionality but not direct comparison of crime and punishment. See Harmelin, 501
U.S. at 1020 (White, J., dissenting); itd. at 1027 (Marshall, J., dissenting). Justices Ginsburg
and Breyer have not spoken on the issue yet.
150
See Whitley v. Albers, 475 U.S. 312, 314-17, 325-26 (1986); td. at 330-33
(Marshall, J., dissenting).
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efforts at quelling the disturbance. 151 From the court opinions, we cannot tell
for what or how long he was m prson, 152 but perhaps the shooting was part of
his "punishment" for whatever that crime was. It would have to be pretty
serious for a shotgun blast to the knee-on top of prison time-to be
proportionate. Or perhaps the shooting was "punishment" for being caught up
m a disturbance. That too would seem disproportionate. In fact, the prisoner
"had not been actively involved m the riot and indeed had attempted to help
matters." 153 And yet the Court concluded that the "punishment" did not violate
the Eighth Amendment. Proportionality cannot make sense of the Court's
decision.
The prisoner in Hudson was serving a twenty-year sentence for armed
robbery154 when he disturbed and argued with another prisoner in the middle of
the night, argued with a prison guard, and then was beaten by the guard while
being brought to a lockdown area. 155 Perhaps the beating was part of his
"punishment" for armed robbery That would not necessarily seem out of
proportion. Imagine if the entire sentence for armed robbery was a short
beating, with no imprisonment. Hudson might have jumped at the chance for
such a light sentence. And if that is so, there is not much reason to think that a
sentence of twenty years m prison plus a short beating would be
disproportionate. After all, the sentence probably could have been forty years in
prison with no beating. 156 Alternatively, perhaps the beating was "punishment"
for causing a disturbance with another prisoner and arguing with a guard. In
that case the punishment might have been disproportionate, although again the
Court's deference regarding proportionality leaves room for doubt.157
Of course, none of this is realistic. A casual reading of the decisions shows
that they were not rooted in proportionality The Court in each case performed
no proportionality calculus in determining whether the Eighth Amendment had
been violated. Proportionality simply does not explain the Court's use-of-force
decisions.
3. "Dissing" Our Government
Punishment is a solemn governmental act-among the most solemn short of
151 See 1d.
152
See supra text accompanying note 58.
153 Whidey, 475 U.S. at 325.
154
See Margolick, supra note 115.
155 See Hudson v. McMillian, 503 U.S. 1, 4 (1992).
156 Cf Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding life imprisonment for
first offense of possessing 672 grams of cocaine).
157 See Id.
1996]
PUNISHMENT
1635
war. It is a deliberately calibrated measure of pam inflicted on an individual.
Yet the experiential definition implies that anything that happens to a prisoner,
no matter how far beyond the government's intentions or control, constitutes
punishment. The fates, fellow prisoners, and prison officials and guards all can
inflict punishment extemporaneously and according to their own will. All are
thus wild cards of punishment administration. This does a disservice to the
institution of government-sponsored punishment.
158 That
Government holds a monopoly over the authority to punish.
monopoly serves the due process and regularity that are essential elements of
the rule of law The institutions of government pay homage to these values
through development and strict interpretation of penal codes, observance of
procedural guarantees, and respect for sentencing limits. Punishment under the
Eighth Amendment is the product of these controls. 159 Punishment is not a
condition that arises by chance, and it is not vigilantism that spurns the
government's controls-not even when prison officials are the vigilantes. And
punishment certainly is not a random beating inflicted by a prison official for
fun or personal revenge. Prison officials can no more inflict "punishment" than
they can define new "crimes," hold "trials" of those who commit such crimes,
and "sentence" those who are convicted. 160 Yet the Court continues to define
punishment according to individual intent instead of institutional action.
An iromc instance of the Court's confusion is found in Hudson v
McMillian,161 where the majority castigated Justice Thomas's dissent for
drawing a distinction between conditions of confinement and uses of force.
the difference between punching a
According to the majority, "[t]o deny
prisoner in the face and serving him unappetizing food is to ignore the
'concepts of dignity, civilized standards, humanity, and decency' that animate
158 For lustones of how this monopoly came to be, see Jennifer Gerarda Brown, The
Use of Mediation to Resolve Cinal Cases: A Procedural Critique, 43 EMORY L.J. 1247,
1254-55 (1994); Governor Mano M. Cuomo, The Crime Victim in a System of Cnnunal
Justice, 8 ST. JoHN's J. LEGAL COMMENT. 1, 2-5 (1992); Jeremy D. Weinstein, Adultery,
Law, andthe State:A History, 38 HASrINGS L.J. 195, 197-99 (1986).
159 Cf. Alfredo Garcia, Toward an Integrated Vision of Cnnunal ProceduralRights: A
Counter to Judicialand Academuc Nihilism, 77 MARQ. L. REv 1, 12 (1993) ("Tlhe Eighth
Amendment's proscription against excessive fines or bail and cruel and unusual punishment
represents the ultimate glorification of individual dignitary interests against the state's
monopoly on the application of force.").
160
Tlis statement is true except, of course, to the extent that prison officials have
authority to establish rules for the prison community, hold hearings to deternmne violations of
those rules, and impose penalties for such violations. See infra text accompanying notes 27087
161 503 U.S. 1 (1992).
OHIO STATE LAW JOURNAL
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[V/ol. 57:1607
the Eighth Amendment." 162 Hot rhetoric, but shallow. There is an important
difference between punching and feeding, but the majority has it backwards.
Punching a shackled and subdued prisoner in the face is an individual act; it is
not the government's doing. Quite the contrary, it is illegal and subject to
criminal and civil sanctions. Feeding a prison population unappetizing food,
however, is the government's doing. An Eighth Amendment claim for
unappetizing food might be well founded if, for example, the government
served its prisoners nothing but cat food. Perhaps an understandable empathy
for victimized prisoners has kept the Court from seeing this distinction.
Whatever the reason, the result is a misunderstanding of punishment and its
constitutional limits.
Larger facets of constitutional doctrine manage to take seriously the special
and formal character of punishment under the Eighth Amendment. The
Amendment obviously does not apply to accidents that occur outside of prison.
And it also does not apply to force used outside of prison. Persons challenging
force used in making arrests must claim under the Fourth Amendment, which
prohibits unreasonable seizures. 163 Persons challenging force used while in
detention-after arrest but before conviction-can clain under the Due Process
Clause164 and might also be able to claim under the Fourth Amendment,
although the Supreme Court has explicitly left that undecided. 165 The Eighth
Amendment is kept out of these equations for an obvious reason. The use of
force against persons who have not been arrested, or who have been arrested
but not convicted, is not punishment in the Eighth Amendment sense. 166 It may
be many things, but it is not punishment. At a common sense level,
governmentally administered punishment is understood as a penalty that follows
a formal determination of responsibility for criminal behavior. It is the Rodney
King "beating," not the Rodney King "punishment," because it was an
administration of street justice, not criminal justice.
C. The Subjectivist Definition
The subjectivist definition currently commands a majority of the Supreme
Court in conditions-of-confinement cases and use-of-force cases. In conditions162
Id. at 11 (quoting Estelle v Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v.
Bishop, 404 F.2d 571, 579 (8th Cir. 1968)).
163 See Graham v. Connor, 490 U.S. 386, 394-95 (1989).
164 See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979).
165 See Graham, 490 U.S. at 395 n.10.
166 See Bell, 441 U.S. at 535 & n.16 (stating that test under Due Process Clause is
whether treatment "amount[s] to punishment" and that Eighth Amendment applies only after
traditional criminal prosecution).
1996]
PUNISHMEVT
of-confinement cases, the subjectivist definition comes close to a correct
understanding of punishment, although it may excessively narrow the group of
people who contribute to prison conditions and for whom the government is
therefore responsible. In use-of-force cases, the subjectivist definition (like the
experiential definition) is too broad, leveling the Eighth Amendment, conflating
the Amendment with other provisions, and failing to take text and structure
seriously 167
1. Conditions
The subjectivist definition as applied to conditions of confinement is
expressed in the majority opinions m Wilson v Seiter168 and Farmer v.
Brennan.169 Wilson held the deliberate indifference requirement applicable in
conditions cases, 170 and Farmer held that deliberate indifference meant
criminal-style recklessness: disregard of a serious risk about which the officials
had actual knowledge (as opposed to a risk about which the officials merely
should have known). 171 The experientialists criticized the subjectivists m Wilson
for giving "no real guidance" on "whose intent should be examined." 172 But to
be fair, the subjectivists did not rule anyone out. As long as the subjectivists are
willing to consider the recklessness of the full range of agents whose actions
add up to make prison conditions what they are, 173 the subjectivist definition
will yield proper results m conditions-of-confinement cases. But there is reason
to doubt the subjectivists' resolve.
For example, the United States as amcus cunae in Wilson expressed
concern that prison officials could defeat the intent requirement by blaming
167
See supra text accompanying note 99.
168 501 U.S. 294 (1991).
169 114 S. Ct. 1970 (1994).
170
See Wilson, 501 U.S. at 303.
171 See Farmer, 114 S. Ct. at 1979.
We hold
that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.
Id.
172 Wilson, 501 U.S. at 310 (White, J., concurring).
173 See supra note 108 (criticizing experientialists' position that the responsible actor
cannot always be identified).
OHIO STATE LAW JOURIVAL
1638
[Vol. 57:1607
conditions on underfunding. 174 The Court replied that "the validity of a 'cost'
defense as negating the requisite intent is not at issue in this case, since
respondents have never advanced it."1 75 A cost defense, if ever raised, should
be rejected out of hand. The government, not a prison administrator, punishes
criminals. 176 And a government that inadequately funds prisons is responsible
for the conditions that result. 177 Perhaps the Court understands that and would
174
See Wilson, 501 U.S. at 301.
Id.at 302.
17 6
Recent commentators have explained:
175
Segmenting responsibility [between prison officials and legislators] exposes a conceptual
difficulty. A state legislative body that deliberately fails to fund its prisons sufficiently to
ensure that conditions do not fall below constitutional standards is insulated from
challenge when other state officials appointed to oversee the prisons have tried to correct
[P]nsoners fortunate enough to have administrators who
these inhuman conditions.
daily
plight may receive judicial recognition, while those
turn a blind eye to their
concerned with the inmates' well-being may have, in fact, only hurt their charges' cause.
As state itmposedpunshment, the status of correctionalfacilities that the state legislature
permits should be consideredpart of the punishment. [The Wilson Court] attempts to
extract the legislative branch from the social structure, permitting a parsed, detached
neutrality regarding its role in maintaining humane prisons.
Gutterman, supra note 88, at 400-01 (emphasis added); see also Bukowski, supra note 12, at
433.
[C]onditions of confinement are necessarily part of the pumshment imposed by the state,
and as such the state is the actor whose intent should be considered. Because the intent of
the state to imprison one of its inmates is always present, the subjective component of the
Eighth Amendment will always be satisfied m a conditions of confinement case.
Id. at 437 ("By focusing on the state's intent to imprison, conditions of confinement can be
brought under the Eighth Amendment without expanding the Amendment beyond its natural
scope.").
177 Me Supreme Court has never ruled on tis, but there is little disagreement. See
Farmer v. Brennan, 114 S. Ct. 1970, 1988 (1994) (Blackmun, J., concurring) ("Where a
legislature refuses to fund a prison adequately, the resulting barbaric conditions should not be
immune from constitutional scrutiny simply because no prison official acted culpably.");
do not
Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) ("Budgetary constraints,
700,
Inc.,
769
F.2d
Servs.,
Health
v.
Prison
justify cruel and unusual pumshment."); Ancata
lack
of
an
unconstitutional
cannot
justify
facilities
funds
for
705 (11th Cir. 1985) ("Lack of
269,
715
F.2d
Faulkner,
v.
Wellman
inmates.");
competent medical care and treatment for
274 (7th Cir. 1983) ("We understand that prison officials do not set funding levels for the
prison. But, as a matter of constitutional law, a certain minumm level of medical service
must be maintained to avoid the imposition of cruel and unusual pumshment."); Smith v.
1996]
PUNISHMENT
explain it if the issue ever arose. But the Wilson Court stated that even if
underfunding were the problem, "it is hard to understand how it could control
the meaning of 'cruel and unusual punishment' m the Eighth Amendment. An
intent requirement is either implicit in the word 'punishment' or is not; it cannot
178
be alternately required and ignored as policy considerations might dictate."
This suggests a lack of resolve to hold government accountable for prison
conditions. 179 If the subjectivists ignore the many agents whose actions
contribute to prison conditions and require prisoners to find deliberate
indifference among a small circle of prison officials, then their definition of
punishment m conditions-of-confinement cases will prove badly cramped.
2. Force
The subjectivist definition's merit is less ambiguous m use-of-force cases
Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980) ("It is well established that inadequate
funding will not excuse the perpetuation of unconstitutional conditions of confinement.");
Battle v. Anderson, 564 F.2d 388, 396 (10th Cir. 1977) ("Nor is the lack of financing a
defense to a failure to provide minimum constitutional standards. If the State of Oklahoma
wishes to hold the inmates m institutions, it must provide the funds to maintain the inmates m
a constitutionally permissible manner.") (citations omitted); Rhem v. Malcolm, 507 F.2d
333, 341 n.20 (2d Cir. 1974) ("'Inadequate resources can never be an adequate justification
for the state's depriving any person of Ins constitutional rights."') (quoting Hamilton v. Love,
328 F Supp. 1182, 1194 (E.D. Ark. 1971)); Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir.
1972); Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968) ("Humane considerations and
constitutional requirements are not, m this day, to be measured or lirmted by dollar
considerations or by the thickness of the prisoner's clothing."); cf Monmouth County
Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 336 (3d Cir. 1987) (recognizing
that "courts have been reluctant to consider costs to the institution a major factor in
determining whether a constitutional violation existis]"); Campbell v. McGruder, 580 F.2d
521,540 (D.C. Cir. 1978) (holding that while financial constraints "may be relevant, they can
by no means be determinative"); Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973)
(vacating district court's order, where one ground for order was that "guards were
shorthanded through lack of funds" and "prison officials were doing what they could with the
money at their disposal"). But see Alberti v. Sheriff of Hams County, 937 F.2d 984, 999 (5th
Cir. 1991) (raising doubt based on intent requirement of Wilson v. Seiter, 501 U.S. 294
(1991), but finding that underfunding defense was unavailable because there was no
"substantial evidence that the state's actions were constrained by legislative refusal to fund").
178 Wilson, 501 U.S. at 301-02.
179 Professor Melvin Gutterman reads these tea leaves as indicating a differentiation
between prison administrators and the legislature, winch he maintains is a "pinched view of
shared constitutional responsibility." Gutterman, supra note 88, at 400. It seems premature to
pass judgment, since the Court did not decide whether inadequate funding may serve as a
defense, see supratext accompanying note 177, but the concern is understandable.
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where it is clearly flawed. It has the same basic problems as the experiential
definition. It treats interpersonal uses of force as punishment, even though they
bear no logical relationship to prisoners' original crimes. 180 Such uses of force
cannot rationally be analyzed under the Eighth Amendment. 181 The equation of
such uses of force with governmentally designated punishment disrespects
182
government's true authority over punishment.
The only analytical difference between the subjectivists and the
experientialists in use-of-force cases is the intent requirement; the subjectivists
require that prison officials act with malicious and sadistic intent for the very
purpose of causing harm. 183 This difference does not solve the problems
identified with the experiential definition. For one thing, the "purpose of
causing harm" phrase is a bit puzzling, assuming we are still talking about the
Eighth Amendment. Punishment is usually painful in some respect, and such
pamn may properly involve physical harm (unless the Court has sub silentio
invalidated corporal punishment). 184 More fundamentally, a purpose to cause
harm cannot convert an interpersonal use of force into a governmental
punishment for an antecedent crune.
The "malicious and sadistic" requirement is all that remains, and it solves
no more. No amount of malice and sadism can convert an interpersonal use of
force into a governmental punishment for an antecedent crime. The Court is
rightly concerned about the cat-and-mouse dominion that guards may exercise
over prisoners like Keith Hudson. But the nature of the event neither qualifies
as punishment nor lends itself to analysis under the Eighth Amendment. And
again, individuals do not punish for crimes; government does. The subjectivist
definition, like the experiential definition, blurs government's exclusive
authority and control over punishment and damages coherence in constitutional
doctrine.
III. A UNITARY DEFINITION OF PUNISHMENT: THE GOVERNMENTALIST
DEFINITION
A new and improved definition of punishment is needed for the Eighth
Amendment. Ideally, this new definition would provide a unitary rationale for
conditions-of-confinement cases and use-of-force cases. Such a definition is
possible, and it lies beyond the strictural and experiential definitions and beyond
180 See supra text
accompanymg notes 97-103, 114-29.
181 See supra text accompanying notes 130-57
182 See supra text accompanying notes 158-66.
183 See Hudson v McMillian, 503 U.S. 1, 6-7 (1992); Wlutley v. Albers, 475 U.S.
312, 320-21
(1986).
184
See supra text accompanying notes 136-43.
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PUNISHMENT
1641
185
the strictural-experiential compromise of the subjectivist definition.
Punishment under the Eighth Amendment is best understood as: (1) a penalty,
(2) inflicted for criminal conduct, (3) pursuant to regular processes of
governmental administration and thus attributable to the government m its role
as monopolist over punishment. Harm meeting all three elements should be
tested according to the usual Eighth Amendment benchmarks: barbarity,
proportionality, and unpunishable crimes.1 86 (And if those benchmarks cannot
sensibly be applied, that is a sure sign that the Eighth Amendment should not be
at play.) Harm not meeting all three elements should not be actionable under
the Eighth Amendment, although it might still be actionable under the Fourth
Amendment, Due Process Clauses, or state tort or criminal law 187
A. Introduction
The Eighth Amendment explicitly protects individuals against certain forms
of punishment. But it also presumes government's authority to punish. The
roots of that presumption were deep even in 1791 when the Eighth Amendment
was ratified. 188 And although elements of an old system of private redress
Other commentators have offered views similar in consequences to those offered m
thls Article, but those views have either differed in substance or lacked theoretical
underpinnings. See Bukowski, supra note 12, at 433-37 (taking position that state should be
responsible only for punishment that it intends to inflict and concluding that conditions of
confinement but not unauthorized uses of force are part of punishment intended by state, but
offering little explanation or theoretical justification); Phillips, supra note 10, at 388-93
(proposing two-part test for all prisoners' claims, excluding intent as a consideration and
asking (1) whether conduct or condition was punishment, and (2) whether it was cruel and
unusual); cf Gutterman, supra note 88, at 395-99 (asserting that all conditions of
confinement should be subject to Eighth Amendment, regardless of officials' intent); Gregory
P. Taxm, Recent Developments, The Eighth Amendment in Section 1983 Cases: Hudson v.
McMillian, 112 S. Ct. 995 (1992), 15 HARv J.L. & PuB. POL'Y 1050, 1059 (1992) ("If
entrepreneurial prison guards truly lack the authority to 'punish' on behalf of the state, the
Court should focus its subjective requirement on the mental state of the senior officials who
do have that authority because they are the constitutionally-relevant state actors.").
186 See supra notes text accompanying notes 130-57
187
This would require modification of Fourth Amendment and Due Process Clause
185
doctrine as well as Eighth Amendment doctrine. See nfra text accompanying notes 292-311.
188 See Brown, supra note 158, at 1254 ("Criminal law became a matter of public
interest with the close of the Anglo-Saxon period in English history and the rise of
feudalism."); Cuomo, supra note 158, at 3-4 (placing origin of state punishment m latter half
of Middle Ages when kings and overlords claimed fines formerly paid to victims); Weinstein,
supra note 158, at 199 (describing development of "king's peace" concept by wich crnmes
were transmuted from private wrongs to wrongs against society).
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remained present in Colonial America, 189 they quickly faded and left a
governmental monopoly 190
Individual protection against governmental punishment developed in the
wake of government's monopolization of punishment and in conjunction with a
broader recognition of individual rights. 191 A prohibition against cruel and
unusual punshments first appeared in the English Bill of Rights of 1689 192 The
Enlightenment solidified this elevated relationstup of individual rights to
governmental power as government's monopoly in law was recognized as a
threat to individual liberty 193 Devices were invented to disperse and check
government's power. 1 94 The United States Constitution and the Bill of Rights
189 See
Brown, supra note 158, at 1255 ("In Colonal America, crime remained a
private matter, and victims were responsible for apprehending and punishing criminals.");
Cuomo. supranote 158, at 4.
Governmental authority was less imperial and centralized in the colonies than it was m
the urban commercial centers of Europe. Tins resulted in the ascendance of the crime
victim once again to the pivotal role in the process of identification, investigation, and
prosecution of the offender. The exacting of restitution from the offender reflected the
customs of Europe in the early Middle Ages.
Id.
imprisonment became
190 See Brown, supra note 158, at 1255 ("By the early 1800s
the most prevalent form of criminal punishment and the victim's role diminished
dramatically."); Cuomo, supra note 158, at 4-5 (attributing adoption of public monopoly over
punishment to influence of Beccana and stating that "Beccana's ideas took root and flourished
in America in the late eighteenth and early nineteenth centuries").
191 See Granucci, supra note 131, at 844-52 (discussing early antecedents to prohibition
against cruel and unusual punshments).
192 See Gregg v. Georgia, 428 U.S. 153, 169 (1976) (joint opinion of Stewart, Powell,
and Stevens, JJ.); Granucci, supra note 131, at 852-60.
19 3
See BERNARD BAiLYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION
26-30 (1967) (describing pervasive influence of Enlightenment thought on revolutionary
generation); HENRY F MAY, THE ENLIGHTEnmENT IN AMEICA 89 (1976) (explaining
primary purpose of government, according to Enlightenment ideology, as protection of
liberty, subject to balance of powers and limited government); Marc Galanter & David
Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 AM. U. L. REv 1393,
1457 (1993) (describing classical liberal underpinnings of Bill of Rights, including fear of
"power of the state and its centralized ability to coerce and repress" and "especially
the
state's unmque rights to impnson and execute convicted felons").
194
See BAiLYN, supra note 193, at 70-79 (describing operation of separation of powers
doctrine in England and its adoption in United States); FORRESr MCDONALD, Novus ORDO
CruAL ORIGINS OF THE CoNsrrrurioN 80-87 (1985) (describing
SECLORUM: THE INi
development of separation of powers doctrine in England and its adoption in United States);
DAviD SCHOENBROD, POWER WrrHour RESpoNsmIm 29 (1994) (stating that one of
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PUNISHMENT
are among the finest of those devices. They are almost entirely dedicated to
defining, distributing, and limiting government's power. 195 The Eighth
Amendment is thus a single facet of an elaborate effort at controlling
government. 196 By the same token, the Eighth Amendment is not a check on
private behavior-mdeed, not even on punitive damages awarded to private
litigants in the government's courts. 197 Private punishment occurs m the
shadow 198 of strict legal restraints, 199 but the Eighth Amendment is not among
Constitution's "strateg[ies] to reconcile democracy with liberty was to allocate power among
elected officials m a way that makes it more difficult to use public power to oppress
individuals").
195 Only two provisions-the Thirteenth and Twenty-First Amendments-regulate
private behavior. U.S. CONST. amends. XIII, XXI. See Laurence H. Tribe, How to Violate
the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the
BalancedBudget Amendment, 12 CONST. COMMENT. 217 (1995).
[Tihere are two ways, and two ways only, in which an ordinary private citizen, acting
under her own steam and under color of no law, can violate the United States
Constitution. One is to enslave somebody, a suitably hellish act. The other is to bring a
bottle of beer, wine, or bourbon into a State m violation of its beverage control
laws
Id. at 220. The original Constitution mostly dealt with governmental structure. See JoHN
HART ELY, DEMOCRACY AND DIsTRusr 92 (1980) ("[IThe original Constitution was
principally, indeed I would say overwhelmingly, dedicated to concerns of process and
structure and not to the identification and preservation of specific substantive values."). The
Bill of Rights obviously concerned individual liberty
196
See generally Garcia, supra note 159 (synthesimig values underlying criminal
procedure protections of Constitution).
197 See Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989)
(holding Eighth Amendment's Excessive Fines Clause inapplicable to punitive damages
awarded m civil case); cf United States v. Ursery, 116 S. Ct. 2135, 2147-49 (1996) (holding
Double Jeopardy Clause potentially applicable to m rem civil- forfeiture proceedings
depending on how punitive the proceedings are, but holding current federal civil forfeiture
provisions to be not punitive); Austin v. United States, 509 U.S. 602, 604 (1993) (holding
Excessive Fines Clause applicable to in rem civil forfeiture proceedings because such
forfeiture amounts to punishment).
198 Cf. Robert H. Mnookm & Lewis Kornhauser, Bargainingin the Shadow of the Law:
The Case of Divorce, 88 YALE L.J. 950, 997 (1979) (observing that threat of formal litigation
influences out-of-court negotiations).
199 See R. Kent Greenawalt, Violence-Legal Justification and Moral Appraisal, 32
EMORY L.J. 437, 449 (1983) ("[E]xcept for parental-child relations, the function of inflicting
physical punishment is assigned exclusively to the state."); id. at 490-92 (explaining limited
situations where punishment through illegal private violence is sometimes regarded as morally
warranted).
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them.
Punishment under the Eighth Amendment accordingly refers only to
governmental punishment. 20 0 And it applies only to criminal matters:
Punishment under the Eighth Amendment refers only to penalties inflicted after
a traditional criminal prosecution. 20 1 As simple as that might seem, this Article
has identified and labeled three different definitions of punishment: strictural,
experiential, and subjectivist. 202 These definitions differ m one basic variable:
the degree to which they treat what happens in prison as governmental
punishment of crime. A proper definition must account for the many aspects of
imprisonment without confusing individual actions and governmentally
mandated punishment.
B. Attribution and the GovernmentalistDefinition
To avoid confusing individual actions with governmental punishment, the
Eighth Amendment should be applied to the acts of prison officials only to the
extent that those acts are attributable to the government's system for
administering punishment. Specifically, punishment should include all
conditions and uses of force inflicted in response to the original crime and
within the officials' statutory and regulatory authority over administration of the
sentence originally prescribed.
The acts of a legislature that passes a penal code containing sentencing
ranges and of a sentencer who selects a sentence from those ranges are
obviously attributable to the government as punishment. Those actions are at
the root of the process of punishment. 203 From there, things get trickier. We
2 00 See Austin,
509 U.S. at 609 ("The purpose of the Eighth Amendment, putting the
Bail Clause to one side, was to limit the government's power to punish.").
201 See Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) ("[The State does not
acquire the power to punish with which the Eighth Amendment is concerned until after it has
secured a formal adjudication of guilt m accordance with due process of law."); supra note
31.
2 02
See supra Part I. The stneturalist definition holds that punishment is the work of
legislatures and sentencing judges, and does not include prison conditions or prison officials'
use of force. See supra Part I.A. The expenentialist and subjectivist definitions include prison
conditions and uses of force. See supra Parts I.B, I.C. The expenentialist definition treats as
punishment all that a prisoner experiences. See supra Part I.B. The subjectivist definition
recognizes punishment only if there is a lugh level of subjective intent on the part of prison
officials: subjective recklessness regarding prison conditions and malicious and sadistic
purpose to cause harm regarding uses of force. See supra Part I.C.
203 See Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting)
(explaining that traditional view of Eighth Amendment applied to "punishments meted out by
statutes or sentencing judges").
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PUNISHMENT
1645
could throw up our hands right away and act as though the punishing is
complete once a convict enters the prison gates. That is the strictural
definition. 204 But it is a false notion of what has been prescribed. 20 5 It misses
something essential to understanding modem punishment: the administrative20 6
agency nature of prisons.
A sentence of imprisonment is more than an abstract term of years. As the
Supreme Court has implicitly recognized, 207 criminals sentenced to prison are
sentenced to a complex of executive and administrative agencies within the
2 04
See supra text accompanying notes 29-35.
See supratext accompanying notes 87-96.
206 It isironic that Justices Scalia and Thomas, who most fervently oppose extension of
the Eighth Amendment into prisons, concentrated m administrative law before their judicial
205
careers.
2 07
See Turner v. Safley, 482 U.S. 78 (1987).
Running a prison is an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government. Prison administration
is, moreover, a task that has been committed to the responsibility of those branches, and
separation of powers concerns counsel a policy ofjudicial restraint.
Id. at 84-85. The Turner Court established a deferential standard of review for review of
prison regulations: whether a regulation is "reasonably related to legitimate penological
interests." Id. at 89. Tis, in tam, involves consideration of four factors: (1) the connection
between the regulation and a legitimate governmental interest; (2) whether alternative means
remain for a prisoner to exercise a burdened right; (3) the effect that exercise of the right
would have on prison administration and other prisoners; and (4) ready availability of
alternatives. See u. at 89-91.
The Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to bb-4 (1994),
which generally requires strict scrutiny of substantial governmental burdens on religious
exercise, may trump the Turner standard with respect to prisoners' exercise of religious
rights. See Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir.), cert denied, 115 S. Ct.
2625 (1995) (applying RFRA); Bryant v. Gomez, 46 F.3d 948, 949 & n.2 (9th Cir. 1995)
(per curam) (applying RFRA); First Assembly of God, Inc. v. Collier County, 27 F.3d 526,
526 (11th Cir. 1994) (per curiam) (recognizing possible applicability of RFRA); Brown-El v.
Hams, 26 F.3d 68, 69 (8th Cir. 1994) (recognizing possible applicability of RFRA);
Levinson-Roth v. Parries, 872 F Supp. 1439, 1451 (D. Md. 1995) (recognizing possible
applicability of RFRA and rejecting prisoner's claim under RFRA analysis); Campbell v.
District of Columbia, 874 F Supp. 403, 408 (D.D.C. 1994) (applying RFRA); Campos v.
Coughlin, 854 F Supp. 194, 204-07 (S.D.N.Y 1994) (same); Allah v. Menei, 844 F Supp.
1056, 1060-63 & n.18 (E.D. Pa. 1994) (same); Lawson v. Dugger, 844 F Supp. 1538,
1540-43 (S.D. Fla. 1994) (same), rev'd sub. nom., Lawson v. Singletary, 85 F.3d 502 (11th
Cir. 1996).
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executive branches of federal, state, and local governments. 20 8 The details of
imprisonment could be set by statute, 20 9 but typically they are a product of
208 Courts and commentators occasionally characterize prisons as adminustrative
agencies. See United States v. Moran, 845 F.2d 135, 138 (7th Cir. 1988) (explaining
purposes of Federal Rules of Criminal Procedure 32(c)(3)(D), which provides judicial review
of alleged inaccuracies in presentence investigation reports, as fairness and establishment of a
clear record that aids appellate courts and "administrative agencies, such as the Bureau of
Prisons and Parole Comnussion, that use the report[s] m their own decision-making
procedures"); Randle v Romero, 610 F.2d 702, 703 (10th Cir. 1979) (per cunam)
(according deference to prison officials as administrative agency officials); Spruyette v.
Owens, 475 N.W.2d 382, 386 (Mich. Ct. App. 1991) (per cunam) (rejecting prison official's
claim to qualified immunity because official acted pursuant to informal administrative policy
as opposed to administrative regulation properly promulgated according to state administrative
procedure act); Ruth Gavison, The Implications of Junsprudential Theones for Judicial
Election, Selection and Accountability, 61 S. CAL. L. REv 1617, 1625 (1988) (stating that
judges need adminustrative skills in cases involving "a complex administrative agency
prison system").
strncture, such as a
209 Recent prison-reform bills and statutes mandate many details of imprisonment. For
example, the No Frills Prison Act, H.R. 663, 104th Cong. (1995), would tie federal funds for
the
prison construction to maintenance of prison conditions "not more luxurious than
average prisoner would have experienced" outside prison, d. § 2(a)(6), and would greatly
change the details of prison life by requiring the elimination of a host of benefits: good-time
credits, unmomtored telephone calls, m-cell television, R-rated or X-rated movies,
pornographic materials, instruction or tramning (live or broadcast) in martial arts or boxing or
wrestling, equipment for weightlifting or bodybuilding, electric or electronic musical
instruments, practice on any other instruments for more than an hour per day, personally
owned computers or modems, m-cell coffee pots or heating devices, living quarters private
from view, food of greater quantity or quality than available in the United States Army,
nonuniform dress, and publishing or broadcasting facilities used for content not previously
approved by officials. See d. For prisoners whose crimes caused serious bodily injury, the
Act would further tie funds to separate cell blocks, physical labor, and elimination of
additional benefits: furloughs without physical restraints, any television, inter-prison travel,
sports or exercise for more than an hour per day, and personal possessions weighing over
seventy-five pounds or bigger than a duffelbag. See id. Finally, the Act would require the
Attorney General of the United States to establish the same conditions in federal pnsons. See
id. § 2(b). Some of these provisions have at least temporarily become law by virtue of their
passage as riders to appropriations bills, thus prohibiting spending on certain "frills." See,
e.g., Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104134, 110 Stat. 1321.
A less detailed approach is contained in the proposed Stop Turning Out Prisoners
legislation. H.R. 667, 104th Cong. §§ 401(a), 501(a) (1995) (directing federal Bureau of
Prisons to eliminate activities and equipment designed to increase strength or fighting ability,
and directing Attorney General to establish standards for federal prison conditions that
provide the least amenities consistent with federal Constitution and with good order and
19961
PUNISHMENT
1647
innumerable discretionary decisions made by prison officials acting pursuant to
their authorizing statutes. 2 10 Officials develop regulations pursuant to those
statutes and rules for their own convenience and good order. 2 11 And they
discipline).
For examples at the State level, see Assembly 1437, 207 Leg., 1st Sess. (N.J. 1996)
(requiring establishment of "People's Prison" programs for all violent offenders, directing
such programs to emphasize punishment rather than rehabilitation, requiring physical labor,
linutmg parole to those able to read, write, and do math at a sixth-grade level, and eliminating
televisions, radios, tape, and compact disc players, electronic games and other entertainment
devices, computers, candy bars, visitors, smoking, telephones, furloughs, and recreation for
more than one-half hour per day); S. 277, 207 Leg., 1st Sess. (N.J. 1996) (same); H.B. 26,
99th Gen. Assembly, 1st Sess. (Tenn. 1995) (directing that state's prisons be constructed to
resemble military barracks and meet mimmum requirements of state and federal constitutions,
limiting prisoners to two hours of television per day, and eliminating exercise equipment, ice
cream machines, and cable television); John Marelius & Dana Wilkie, Governor Inks Law
Limiting Inmates' Rights, SAN DIEGo UNION-TRB., Sept. 13, 1994, at A-3 (reporting
Governor Pete Wilson's signature of law repealing parts of California's 1975 Inmate Bill of
Rights legislation, restricting weightlifting, and prohibiting pornographic and hate literature).
It would be very interesting to see how the stricturalists would handle claims that such
legislative measures violate the Eighth Amendment. Gone would be the rationale that the
legislature and sentencer had not specifically prescribed the prison conditions.
210 Indeed, officials have so much discretion that prisons' status as true administrative
agencies has been doubted; often their "authorizing statutes provide[] no rules to bind the
discretion of prison officials to the legislative purpose." Jonathan A. Willens, Structure,
Content and the Exigencies of War- American Prison Law After Twenty-Five Years, 19621987, 37 AM. U. L. REv 41, 99 (1987); cf. Melvin Gutterman, Prison Objectives and
Human Dignity: Reaching a Mutual Accommodation, 1992 BYU L. REV 857, 890-905
(discussing and criticizing judicial deference to adminstrative rules and policies that burden
prisoners' rights); Philip J. Hirschkop & Michael A. Millemann, The Unconstitutionality of
Prison Life, 55 VA. L. REV 795, 811-12 (1969) ("The central evil [in prisons] is the
unreviewed administrative discretion granted to the poorly trained personnel who deal directly
with prisoners."); Pamela M. Rosenblatt, Note, The Dilemma of Overcrowding in the
Nation's Prisons: What Are Constitutional Conditions and What Can Be Done?, 8 N.Y.L.
ScH. J. HuM. Rrs. 489, 494-95 (1991) (associatng adminstrative agency characterization of
prisons with courts' old "hands-off" approach).
211 See JAMEs J. GOBERT & NEiL P COHEN, RIGiTS OF PRISONERS § 8.01 (1981)
(explaining nature, usage, and legal effect of written and unwritten prison rules and
regulations); Bruce R. Jacob & K.M. Sharma, Disciplinaryand Punitive TransferDecisions
and Due Process Values in the American CorrectionalSystem, 12 ST='SON L. REv 1, 8
(1982) (stating that in some jurisdictions, administrative rle-making authority "has been
specifically delegated to the superintendent or warden of each correctional institution," while
in other jurisdictions, "prison administrators have implied authority to develop rules"); Ira P
Robbins, The Prisoners' Mail Box and the Evolution of Federal Inmate Rights, 144 F.R.D.
127, 136-40, 142-43 (1993) (discussing development of federal prisons and adoption of rules
OHIO STATE LAW JOURNAL
1648
[Vol. 57:1607
possess wide discretion to make a host of other decisions m the course of dayto-day operations.2 12 In short, they fill the gaps left by the legislature and
sentencer. This is utterly typical m the modem administrative state,2 13 and it
would be folly to deny that the acts and decisions of prison officials m this gapfilling role constitute punishment for which the state is responsible under the
Eighth Amendment. The legislature and sentencer not only foresee but rely
upon prison officials' completion of the task of punishment. An official's
legitimate exercise of discretion is attributable to the legislature and sentencer
2 14
who chose to leave those matters to the official.
Moreover, prisons are not static institutions. Events and conditions arise
after a prisoner is sentenced. These too may be attributable to the government
as part of the penalty for the original crime, but only to the extent they arise
pursuant to procedurally regular prison administration.2 15 This can happen
either by changes to written regulations and policies, or by unwritten decisions
made by persons with authority to make those decisions. In any event, the
meaning of a sentence of imprisonment partly depends on administrative
decisions-written or unwritten-that officials have authority to make. These
decisions and their consequences are properly attributable to the government
2 16
and subject to the Eighth Amendment.
and regulations).
212 See Bell v Wolfish, 441 U.S. 520 (1979).
should be accorded wide-ranging deference in the adoption
Prison admiustrators
and execution of policies and practices that m their judgment are needed to preserve
[J]udicial
internal order and discipline and to maintain institutional security.
deference is accorded not merely because the administrator ordinarily will, as a matter of
fact in a particular case, have a better grasp of his domain than the reviewing judge, but
also because the operation of our correctional facilities is peculiarly the province of the
Legislative and Executive Branches of our Government, not the Judicial.
Id. at 547-48.
213 f Mason v. Ciccone, 531 F.2d 867, 870 (8th Cir. 1976) (requiring exhaustion of
administrative remedies prior to judicial review of habeas corpus challenge to prison
conditions, and noting that "[t]he prior subrmission of disputes to administrative agencies is
common to our law"). Indeed, some tunk the practice is all too common. E.g.,
SCHOENBROD, supra note 194, at 13-19 (advocating limitation of legislative delegation of
authority to administrative agencies).
214 A distinction might be drawn between formal rules and informal exercises of
administrative discretion, but courts have generally rejected such a distinction. See T. Joe
Snodgrass, Case Note, 17 WM. MrrCHELLL. REv 883, 899-901 (1991).
215 This raises Ex Post Facto Clause concerns, which are addressed infra text
accompanying notes 248-69.
216 Cf Gutterman, supra note 88, at 386 (suggesting that "judicial responsibility may
1996]
PUNISHMENT
A multitude of prison conditions are determined in this discretionary, nonstatutory manner: institutional infrastructure conditions such as heating,
lighting, and plumbing; provision of consumables such as food, clothing, and
bedding; daily lifestyle matters such as schedules, occupational opportunities,
and permissible private possessions; and security policies affecting prisoners'
freedoms and protection. These conditions may fluctuate from the time a
convict is sentenced to the time he arrives at prison, and thereafter. Perhaps
officials provide new bedding one day, then lower the heat the next. Or perhaps
they decide to save money (and compromise prisoners' security) by laying off
half the prison guards. 2 17 Statutes do not necessarily dictate such judgments.
The meaning of imprisonment thus changes after sentencing, but it changes
according to regular processes of government: decisionmakers acting within
their authority 2 18 The Eighth Amendment properly applies to these exercises of
discretionary authority
The governmentalist definition departs most from other definitions in its
treatment of the actions of prison officials who exceed their authority The
attribution requirement is then lacking, and the officials' actions cannot be
considered punishment for purposes of the Eighth Amendment. Officials
sometimes act in violation of a statute, do not conform to administrative
regulations, or otherwise exceed permissible discretion. If punishment is plainly
understood as a penalty designated by government in response to criminal
behavior, then actions beyond-indeed, contrary to-government's designation
cannot fairly be termed punishment.
Prison conditions are generally attributable to the government because
2 19
officials have discretion to administer and control the prison environment.
But merely accidental or otherwise unpredictable conditions are not attributable.
Similarly, conditions resulting from an official's exceeding all authority and
discretion are not attributable. 220 For example, if a legislature and prison
continue into the correctional phase").
217 Cf.Farmer v. Brennan, 114 S. Ct. 1970 (1994) (considering claim that prison
officials exposed prisoner to known danger from other prisoners); supra text accompanying
notes 68-80.
218 Surely the legislature and sentencing judge prefer the approach described in the text
to a requirement that they revisit every criminal conviction whenever the prison system
changes. Revisitation would be logically necessary if a sentence to imprisonment did not
imply acceptance of change, because otherwise the place-prison-to which criminals had
would no longer exist.
been2sentenced
19
See supra notes 209-12.
220 Cf Whitley v Albers, 475 U.S. 312, 318 (1986) ("The Cruel and Unusual
Punishments Clause 'was designed to protect those convicted of crimes,' and consequently the
Clause applies 'only after the State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions."') (quoting Ingraham v. Wright, 430 U.S.
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bureau established detailed laws and regulations on prison administration, a
renegade prison official who refused to comply with those laws and regulations
surely would exceed hns discretion. His actions would not be attributable to the
government and could not fairly be considered punishment for purposes of the
Eighth Amendment. 221 The prisoners might have legitimate complaints, but
those complaints would rest on the detailed laws and regulations in question,
not the Eighth Amendment.
Use of force is even more clearly not attributable to the government as
punishment. If force is used to maintain security, it is not punishment because it
is not a penalty inflicted for criminal conduct. If the use of force isjust random
prison-guard violence, for no reason but a sadistic cat-and-mouse brand of
pleasure, then it is not punishment because it is neither a penalty inflicted for
criminal conduct nor pursuant to regular processes of governmental
administration. Such actions cannot fairly be attributed to the government as
part of the penalty designated in response to the crime. And therefore they
cannot be cruel and unusualpunishments.
Perhaps the toughest issues for a governmentalist definition of punishment
arise when it appears that those with authority to punish-legislature, executive,
and sentencer-have acquiesced in otherwise unattributable inflictions. As in 42
U.S.C. § 1983 doctrine, 222 lawless prison conduct may deserve to be treated as
the law of the land. 223 Thus, if prisoners or their advocates communicated the
651, 664, 671 n.40 (1977)).
221 Perhaps a legislature and prison bureau could ratify the official's actions by failing to
correct them, in which case the actions would be attributable to the government. See infra text
accompanying notes 222-28.
222 42 U.S.C. § 1983 (1994). Section 1983 cannot serve as a vehicle for a lawsuit under
the governmentalist definition of punishment, see infra text accompanying notes 234-47, but
it offers a useful doctrinal parallel.
223 See Monell
v. Department of Soc. Servs., 436 U.S. 658, 690-91 (1978) (stating that
§ 1983 authorizes suit for "constitutional depnvations visited pursuant to governmental
'custom' even though such a custom has not received formal approval through the body's
official decisionmakmg channels"). Id. at 691 n.56 (quoting Nashville, C. & St. L. Ry. v.
Browning, 310 U.S. 362, 369 (1940)).
'It would be a narrow conception of jurisprudence to confine the notion of "laws" to
what is found written on the statute books, and to disregard the gloss which life has
written upon it. Settled state practice
can establish what is state law..
Deeply
embedded traditional ways of carrying out state policy
are often tougher and truer
law than the dead words of the written text.'
Id. Courts have variously held decisionmakers responsible for "tacit approval, acquiescence,
ratification, knowledge, or encouragement" of unlawful conduct. See G. Flint Taylor,
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PUNISHMENT
facts of violence to lawmakers, the government consciously refrained from
disciplining guards or otherwise securing prisoners' safety, and evidence
showed the motive for inaction to be punitive, 2 24 then subsequent violence
could be attributed to the government as part of the intended punishment for
Eighth Amendment purposes.
But the burden of proof for such claims would have to be high. A court
would be attributing unconstitutional conduct not to a local school board or
police force (as in typical § 1983 cases) but to a legislature, executive, or
sentencer. Courts do not lightly ascribe hidden unconstitutional motives to coequal branches of government. z25 This is especially so where the focus is on the
other branches' inaction, 226 and where the possible explanations may include a
complex mixture of understandable motives (such as a sense of impossibility
about eradicating all misconduct) and unreasonable ones (such as a sense that
be
prisoners deserve a good beating now and then).227 And these concerns may 22
8
heightened when federal courts review the motives of state governments.
Mwucpal Liability Litigation m Police Misconduct Cases from Monroe to Praprotuik and
Beyond, 19 CuMB. L. REv 447, 453 (1989).
224 For example, plaintiffs could show remarks on the floor of the legislature indicating
that beatings by guards were exactly what prisoners deserved. Cf. Illinois v. Krull, 480 U.S.
340, 352 n.8 (1987) (assuming that legislators acted faithfully to Constitution but preserving
possibility of reconsideration "[i]f future empirical evidence ever should undermine that
assumption").
225
Adherence to ths principle is uneven, see generally Louis S. Raveson, Unmasking
the Motives of Government Decasonmakers:A Subpoena for Your Thoughts?, 63 N.C. L.
REv 879 (1985) (exploring problems with and possibilities for examing legislators' and
administrators' motives m determining constitutionality), but surely it has at least some merit.
See Knull, 480 U.S. at 352 n.8 (stating reluctance to assume a "significant problem of
legislators who perform their legislative duties with indifference to the constitutionality of the
statutes they enact"); cf. Mueller v. Allen, 463 U.S. 388, 394 (1983) (stating Court's
"reluctance to attribute unconstitutional motives to the States" in an Establishment Clause
case).
226
See Daniel A. Farber, Book Review, 11 CoNsr. COMMENT. 613, 618 (1995)
("[P]roof of intent is particularly problematic when legislative inaction is involved.").
Findings of unconstitutional inaction have been made primarily in cases involving racial
discrimination and segregation. See generally Theodore Y Blumoff, Some Moral
Implications of Finding No State Action, 70 NoTRE DAME L. REv 95, 113-27 (1994)
(discussing courts' limted willingness to scrutinize legislative inaction).
227
See e.g., Mueller, 463 U.S. at 394-95 (stating the that Court is particularly reluctant
to find unconstitutional motive when there is a plausible constitutional motive). Anyone can
suffer the consequences of government's inevitably limited control over law officers. Those
consequences are not normally regarded as punishment but as a manifestation of the
impossibility of perfect security, whether inside prison or outside prison.
228 Its instructive that § 1983 applies to municipal governments but not state
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The governmentalist definition of punishment therefore night permit an Eighth
Amendment clain for violence inflicted by prison guards, but the inferences
required to support such a claim would be appropriate only in clear cases of
legislative and executive intent to permit such violence as part of the
punishment of imprisonment.
The governmentalist definition is neither nitpicklng nor a proposal to return
to the days of a hands-off judiciary 229 The meaning of punishment under the
Eighth Amendment should make common sense. 2 30 It should permit rational
analysis in the usual framework of Eighth Amendment doctrine.2 31 It should
also respect the public's and the government's role as the source of penal
policy, and thus respect the true public intentions for criminals. 2 32 An
attribution principle serves these purposes. It recognizes the legislature and
sentencer as the primary actors whose conduct is subject to Eighth Amendment
scrutiny. 233 It then treats procedurally regular events and conditions in a prison
as not only the prison official's command, but the legislator's and judge's wish.
C. A Few Words on 42 U.S. C. § 1983
So far, this discussion has omitted what may seem to be an all-important
point of law- 42 U.S.C. § 1983.234 The Constitution does not by itself provide
governments. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989) (holding
§ 1983 inapplicable to state governments and state officials acting m performance of their
duties); Monell, 436 U.S. at 690 n.54 ("Our holding today is, of course, limited to local
government units which are not considered part of the State for Eleventh Amendment
purposes."), Ultimately, however, § 1983 could not serve as a vehicle for a lawsuit under the
definition of punishment. See infratext accompanying notes 234-47
governmentalist
229 See Rosenblatt, supra note 210, at 494-95.
230 See supra text accompanying notes 7-11, 121-29. Professor Joseph Goldstein has
urged the Supreme Court, m its opinion writing, to use simple language understandable to all
and to be candid about the reasons for its decisions. See JOSEPH GOLDSTEIN, THE
INTELIGIBLE CONSTTUTION: THE SUPREME COURT'S OBLIGATION TO MAINTAIN THE
CONSTITUTION AS SOMEIHING WE THE PEOPLE CAN UNDERSTAND 112-16 (1992).
Understandable writing, however, cannot be divorced from understandable reasoning. A
common-sense interpretation is surely as important as a common-sense explanation to what
Professor Goldstein says the Court "must never forget[:] that the Constitution, which they
expound, emanated from Us, was meant to reman comprehensible to Us, and was established
for Our posterity to endure and to be modified with Our informed consent." Id. at 7
231 See supra text accompanying notes 130-57
232 See supra text accompanying notes 158-66.
233
See supratext accompanying notes 11, 33, 89, 209-13.
234 42 U.S.C. § 1983 (1994). Section 1983 provides in pertinent part:
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1653
a basis for a lawsuit either against government or against government officials.
The doctrine of sovereign immunity bars suits against the government, and the
Constitution addresses only governmental conduct and not the conduct of
individual officials.2 35 Section 1983, however, provides a statutory basis to sue
for constitutional wrongs. By its terms, it applies to persons who act "under
color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia."236 Tis language is usually expressed by
the shorthand "under color of law. "237
Section 1983 is part of the civil rights statutes that Congress enacted after
the Civil War. 238 For a long time, courts narrowly interpreted the color of law
provision to apply only to unconstitutional conduct that a state specifically
authorized. 2 39 For example, a police officer's unconstitutional search was ipso
facto beyond Ins authority and therefore irremediable under § 1983.240 This
dramatically changed m 1961 when the Supreme Court decided Monroe v.
Pape24 1 and held police officers liable under § 1983 for constitutional
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any nghts, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit m equity, or other
proper proceedings for redress.
Id.
2 35
For two exceptions, see supra note 195.
236 42 U.S.C. § 1983.
2 37
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970) ("ITihe plaintiff must
show that the defendant deprived hun of [a] constitutional right 'under color of any statute,
element requires
ordinance, regulation, custom, or usage, of any State or Territory.' Tius
that the plaintiff show that the defendant acted 'under color of law."'). In practice, "under
color of law" m § 1983 actions means the same thing as m a parallel criminal statute, 18
U.S.C. § 242 (1988), see Monroe v. Pape, 365 U.S. 167, 185 (1961), overruled on other
grounds by Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), and the same thing as
"state action" under the Fourteenth Amendment, see Lugar v. Edmonson Oil Co., 457 U.S.
922, 929 (1982).
2 38
See GERARD GUNTHER, CONSrIUIONAL LAw 857-59 (11th ed. 1985)
(summarzing Reconstruction-era civil rights statutes).
2 39
See Perry M. Rosen, The Bivens Constitutional Tort: An Unfidfilled Pronuse, 67
N.C. L. REv. 337, 339-42 (1989) (summnarzng history of Section 1983 doctrne).
240
See Id. at 339.
241 365 U.S. 167 (1961), overnded on other grounds by Monell v. Department of Soc.
Servs., 436 U.S. 658 (1978).
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violations. 242
Attribution to government as a lodestar for Eighth Amendment doctrine
might seem to resurrect the defunct, narrow view of § 1983. But the expansion
of § 1983 never escaped all boundaries. 243 It is still true that "not.
all
constitutional provisions are susceptible of violation by government officials
acting individually 244 Professor Laurence Tribe defines the distinction m
terms of "norms ordinarily addressed to legal systems as a whole rather than to
individual government actors. '245 Systemic norms remain outside the purview
of § 1983. The narrow view failed to recogmze that government can violate the
Constitution and that some violations can be effected through nothing more than
individual conduct. The remaining limitations on § 1983 account for violations
that only government can commit-violations that are always systemic and that
always require the collaborative activity of multiple state officials. In short,
some constitutional provisions presume the multipersonal synergy that is
government.
Punishment under the Eighth Amendment is one of those collaborative
activities, and the Cruel and Unusual Punishments Clause is one of those
systemic norms. Punishment is one of those things that government alone
does-like providing procedural due process and just compensation. 246 An
242 See id. at 168-87 Another major development came m 1978 when the Court held
local governments liable as "persons" under § 1983. See Monell, 436 U.S. at 664-89.
243
See LAuRiNcE H. TRIE, AMmCAN CONSTrTUONAL LAw § 18-4, at 1703 (2d ed.
1988) ("It is important, however, not to overstate the significance of the Supreme Court's
decisions that the ultra vires acts of mdividual government officials can amount to
unconstitutional state action."); id. § 18-4, at 1704 (noting the "inevitable plurality of even the
'color244
of law' cases").
Id. § 18-4, at 1705.
245
Id. § 18-4, at 1705 n.15.
See id. An interesting question is whether the Establishment Clause of the First
Amendment falls within tus set. The Supreme Court has decided establishment cases without
questioning whether § 1983 was an appropriate velucle. See, e.g., Marsh v. Chambers, 463
U.S. 783, 785 (1983) (noting that an Establishment Clause challenge to legislative prayer was
brought under § 1983). The Ninth Circuit may be the only court ever to have noted the
question. See Cammack v Waihee, 932 F.2d 765, 767 n.3 (9th Cir. 1991) ("Because the
parties have not briefed the point, we express no opimon on the efficacy of bringing an
establishment clause challenge under § 1983. We note that this route has been traveled before
without exciting controversy (or even comment)."). I am inclined to think that establishment
of religion differs significantly from punishment or due process or just compensation.
Establishment is an enterprise that is not only individually unachievable but systematically off
limits. The others are enterprises in which the system is either required or presumed to
engage. This difference might justify heightened § 1983 sensitivity to individual conduct that
tends toward establishment. At the same time, it might explain why presidents and other
246
1996]
PUNISHMENT
attribution principle thus is not meant to resurrect the actual-authority doctrine
under Section 1983. Rather, attribution is consistent with the limits on § 1983
that remained after the denuse of the actual-authority doctrine. Moreover,
prisoners who suffer at the hands of state officials will have various remedial
paths, including other constitutional provisions and § 1983.247 They just cannot
transmute individual officials' rogue conduct into punishment under the Eighth
Amendment.
D. Ex Post Facto Changes in Pnson Conditions
Prison conditions that change after a criminal is imprlsoned 2u-much less
after he commits his crime-raise questions about ex post facto punishment. 249
The Supreme Court arguably applied the Ex Post Facto Clause to conditions of
confinement long ago. 250 But in the context of modem conditions-ofconfinement litigation, the Court has not spoken; only circuit courts of appeals
have addressed conditions of confinement under the Clause.25i
The Supreme Court's general approach to ex post facto doctrine gives no
clear answer. In three decisions during the period of 1937 to 1987, the Court
invalidated changes in sentencing statutes that increased the prison sentence that
a criminal might receive.252 Each decision defined the judicial test under the Ex
individual government officials are able to escape § 1983 liability when they mvoke religion.
Their individual conduct ordinarily does not add up to the level of systemic activity that the
constitutional
provision may presume.
247
See rnfra text accompanying notes 288-323.
248
See supra text accompanying notes 215-18.
.pass
249 The Ex Post Facto Clause of the Constitution commands: "No State shall
"U.S. CoNsr. art. I, § 10, cl. 1.
any
ex post facto Law
250 See Rooney v. North Dakota, 196 U.S. 319, 325-27 (1905) (finding no increase m
punishment from requirement that death row prisoner be kept m close confinement m
penitentiary, as opposed to confinement m county jail); In re Medley, 134 U.S. 160, 171-72
(1890) (finding great increase m punishment from requirement that death row prisoner be kept
m solitary confinement m penitentiary and without notice of which day of week execution
would occur, as opposed to ordinary confinement in county jail with notice of day of
execution).
251 See, e.g., Gilbert v. Peters, 55 F.3d 237, 238 (7th Cir. 1995) ("IT]he Ex PostFacto
Clause does not prohibit every alteration in a prisoner's confinement that may work to Ins
within the purview
disadvantage. Only measures which are both retroactive and punitive fall
of the clause.") (citation onutted); Ewell v. Murray, 11 F.3d 482, 485 (4th Cir. 1993)
("Reasonable prison regulations are not frozen at the time of each inmate's conduct, but
rather, they may be subject to reasonable amendments as necessary for good prison
safety and efficiency, without implicating ex post facto concerns.").
administration,
2 52
See Miller v. Florida, 482 U.S. 423, 432-36 (1987) (invalidating statutory increase
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Post Facto Clause as whether the challenged change "disadvantaged" the
criminal. 253 In 1990, however, the Court announced a new standard for ex post
facto claims: whether a challenged change "alter[s] the definition of crimes or
increase[s] the punishment for criminal acts." 254 The Court confirmed this new
255
standard in a recent decision on the subject.
For prison conditions, the relevant question under the new standard is
whether changes m conditions amount to increases m punishment. As a
threshold conceptual matter, the possibility should be readily accepted. Prison
conditions should be treated as an aspect of punishment relevant to ex post facto
analysis no less than to Eighth Amendment analysis. A categorical rule against
application of the Ex Post Facto Clause to prison conditions would be
intellectually indefensible. Harder questions concern how the analysis should be
performed and what standards should be used.
Attribution to government should again be the key. Whether punishment is
increased should be determined by comparing the meaning of prison at the time
of the offense to the meaning of prison after the challenged changes.2 56 As
m formula used to calculate sentencing range); Weaver v Graham, 450 U.S. 24, 33-36
(1981) (same); Lindsey v. Washington, 301 U.S. 397, 400-02 (1937) (invalidating statutory
replacement of discretionary sentencing range with mandatory sentence at maximum of
previous range).
253 See Miller, 482 U.S. at 430; Weaver, 450 U.S. at 29; Lindsey, 301 U.S. at 401.
254 Collins v. Youngblood, 497 U.S. 37, 43 (1990). Collins upheld a state appellate
court's reformation of an improper criminal sentence where the reformation was based on a
statute enacted after a state district court had recommended granting the prisoner's habeas
corpus petition but before the appellate court heard the case. See id. at 39-40.
255
See California Dep't of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995).
256 The Ex Post Facto Clause applies to changes in the penalty that was provided at the
time of the offense, not at the time of sentencing. See Lindsey, 301 U.S. at 401 ("The
Constitution forbids the application of any new punitive measure to a crime already
consummated, to the detriment or material disadvantage of the wrongdoer."); see also, e.g.,
U.S. GuiE tNS MANuAL § 1BL.1(b)(1) (1994):
If the court determines that use of the Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ar post facto clause of the United States
Constitution, the court shall use the Guidelines Manual in effect on the date that the
offense of conviction was committed.
Id. For a collection of cases discussing this proposition and an assertion that Congress did not
expect such a constraint on the guidelines' application, see William W Wilkins, Jr. & John
R. Steer, The Role of Sentencing Guideline Amendments in Reducing UnwarrantedSentencing
Disparity, 50 WASH. & LEE L. REv 63, 67 n.23 (1993) ("The courts of appeals have held
uniformly that the guidelines m effect at the time of sentencing may not be used if they punish
more severely than those m effect at the time of the defendant's offense.").
19961
PUNISHMENT
1657
explained earlier, the legislators (and sentencers) who define prisoners' terms2 of
57
years in prison do so under a particular, time-bound conception of prison.
They set the term with the then current meaning of prison m mind and thus
balance the term of years against the nature of imprisonment as it is then
understood. Subsequent changes to prison conditions obviously upset that
balance of considerations and may be fundamentally unfair to the criminal.
25 8
Concern about such unfairness lies at the heart of the Ex Post Facto Clause.
Consider the resurrection of the chain gang.25 9 Fifteen years at hard labor
in a penitentiary is no doubt greater punishment than fifteen years at a prison
farm for nonviolent offenders. Similarly, fifteen years on a chain gangespecially where the gang labors at breaking rocks26 0-is no doubt greater
2 61 To the extent that
punishment than fifteen years of ordinary imprisonment.
the resurrection of the chain gang is applied to old as well as new convicts, it
262
raises real ex post facto concerns.
257
See supratext accompanying notes 88-92.
258 Cf TRIBE, supra note 243, § 10-1, at 630-31 (locating underlying purposes of
protections like the Ex Post Facto Clause in virtue of regularity and evils of arbitrariness and
oppression).
2 59
Alabama, Florida, and Arnzona recently began using chain gangs again. See
Alabama Bnngs Back Rock-Brealang Gangs, WAsH. Posr, Aug. 21, 1995, at A9 [hereinafter
Rock-Breaking Gangs] (reporting Alabama's and Florida's reinstitution of chain gangs);
Dennis Wagner, AZ Cons Working on the Chain Gang, PHOENuX GAZ., May 16, 1995, at Al
(reporting Arizona's reinstituation of chain gangs). Several other states are considenng it. See
Rock-Breaking Gangs, supra, at A9 (reporting smilar efforts in Michigan and Wisconsin).
Interestingly, the chain gangs are composed of medium-security nonviolent criminals, not
murderers and the like. See Brent Staples, The Chain Gang Siow, N.Y. TIMEs, Sept. 17,
1995, § 6, at 62 (reporting composition of Alabama chain gangs); Wagner, supra, at Al
(reporting composition of Arizona chain gangs).
260
See Abama to Make PrtonersBreak Rocks, N.Y. ThiEs, July 29, 1995, § 1, at 16
[hereinafter PrisonersBreak Rocks] (reporting resurrection of chain gangs and explaining that
rocks would be trucked to prisons "so that chained inmates can break the stones into pea-sized
pellets," and stating that "[t]he only goal of the program is to increase the level of punishment
for prisoners, since state highway officials say they have no use for the crushed rock").
261 The Alabama prison commissioner who played a part in the remstitution of chain
gangs reportedly stated that prisoners were "absolutely complaining, and I think the success
of the program is proportionate to their complaints" and that the program is "punitive in and
of itself." Rock-Breaking Gangs, supra note 257, at A9 (quoting Alabama Prison
Commissioner Ron Jones).
262
The Southern Poverty Law Center sued on behalf of the prisoners in Alabama, but
the ground for the suit reportedly was that the chain gangs constitute cruel and unusual
punishment in violation of the Eighth Amendment. See Prisoners Break Rocks, supra note
260, at 16. The case settled when the Alabama Department of Corrections agreed to chain
inmates individually at the ankles and not together in a group. See Alabama Chain Gang
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This is not to say that all changes m conditions violate the Ex Post Facto
Clause. Circuit courts of appeals rightly have rejected the notion that conditions
must not change at all for any prisoner.263 Such a system would be
unworkable. But by the same token, drastic changes m conditions may make
prison a markedly greater punishment than contemplated when the legislature
passed the underlying penal provision or when the judge pronounced sentence.
Courts should recognize tis simple fact in considering whether administrative
or statutory changes to prison conditions violate the Ex Post Facto Clause. The
result will be a doctrine that balances the competing considerations and
prohibits changes in conditions-and only those changes in conditions-that
264
truly increase the level of pumshment.
One final observation: All of these suggestions assume that the Ex Post
Facto Clause applies to administrative acts. Because the Clause forbids passing
any ex post facto "Law," 265 it might be interpreted as inapplicable to changes
in administrative rules or policies. The Supreme Court may even have had such
a strict interpretation m mind in some of its opinions.266 Although plausible,
this is not a convincing interpretation. Other individual rights have readily been
extended beyond their literal application to "laws. '267 Moreover, the modem
administrative state and prison system are far more complex and changeable
than whatever prisons may have existed m 1787.268 Limiting the Ex Post Facto
ProgramAltered, 1 CoRREcrioNs PROF. 1, 1 (1996). For other potential examples of ex post
facto changes, see supra note 207
263 See supra note 249.
264
The circuit courts may be on their way to doing just tins. The Seventh Circuit m
Gilbert v. Peters, 55 F.3d 237, 238 (7th Cir. 1995), stated that the Ex Post Facto Clause
"does not prohibit every alteration m a prisoner's confinement," but only those that are
"retroactive and punitive." Similarly, the Fourth Circuit m Ewell v. Murray, 11 F.3d 482,
485 (4th Cir. 1993), stated that "[r]easonable prison regulations
. may be subject to
reasonable amendments as necessary for good prison admuistration, safety and efficiency."
265
U.S. CONSr. art. I, § 10, cl. 1.
266 See, e.g., Collins v. Youngblood, 497 U.S. 37, 41 (1990) ("Although the Latin
phrase 'ex postfacto' literally encompasses any law passed 'after the fact,' it has long been
recognized by this Court that the constitutional prohibition on expostfacto laws applies only
to penal statutes which disadvantage the offender affected by them.") (citations omitted).
267 Foremost is the First Amendment, wich begins with the words "Congress shall
make no law." U.S. CONST. amend. I.
268 CompareGodinez v. Lane, 733 F.2d 1250, 1261-62 (7th Cir. 1984) (explaining that
judges must defer to prison officials who "possess a wealth of penological expertise and
experience that qualifies them to supervise, discipline, and rehabilitate inmates within an everchanging, complex prison system") with David J. Rothman, History of Prisons,Asylums, and
Other Decaying Institutions, in PRisoNERS' RIGHTs SouRcEaooK 5, 6 (Michele G. Hermann
& Marilyn G. Haft eds., 1973).
19961
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1659
Clause to statutes would be unrealistic. The possibility nevertheless cannot be
ignored, especially in light of the Court's recent constriction of ex post facto
doctrine. 269
E. The Special Case of Prison Discipline
Another form of "new" punishment that prisoners encounter falls under the
category of prison discipline. Rarely, if ever, can a prison official's use of force
be characterized as a response to a crime, 270 much less as a response that is
pursued according to due process.2 71 Instead, it is spontaneous and not
responsive to any crime that the prisoner committed. But a possible exception
arises when prisoners violate disciplinary rules. Officials may, pursuant to a
proper hearing, impose an increment of punishment above the usual course of
imprisonment. If that incremental punishment was subjected to Eighth
Amendment analysis, the "crime" being punished would best be regarded as
the rules violation rather than the prisoner's original offense, even though the
272
transgression would be adrnnistrative rather than criminal.
Should the Eighth Amendment apply to such cases even though the
violation is not criminal? The Supreme Court has developed tests for
determining whether penalties outside the criminal context constitute
punishment for purposes of the Due Process 273 and Double Jeopardy
Institutionalization of "problem people" in the United States ongmated in the opening
[A]Imost nowhere did the colonists incarcerate the
decades of the 19th century.
deviant or the dependent. Jails held only prisoners awaiting trial, not those convicted of a
crime; and the few towns that erected almshouses used them only m exceptional
cases
Id.
269 See California Dep't of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995)
(explaining how Collins v. Youngblood abandoned prior broader test for Ex Post Facto Clause
violations).
270
See supra notes 10-11 and accompanying text.
271 See supra notes 10, 200, 221 and accompanying text.
272 See In re Ramirez, 705 P.2d 897, 901 (Cal. 1985) ("If any aspect of prison life is
unconnected to a prisoner's original crime, it would seem to be the sanctions for lIs
misconduct while in prison."). The court in Ranurez demed a habeas corpus petition raising
an ex post facto challenge to the state's new system for calculating good-time credits, to the
extent that the system was applied to prisoners whose crimes predated the system's adoption.
273 See, e.g., Bell v. Wolfish, 441 U.S. 520, 535-40 (1979) (evaluating due process
challenge to conditions of pretrial confinement by inquiring whether conditions amount to
punishment); Kennedy v. Mendoza-Martmez, 372 U.S. 144, 163-84 (1963) (evaluating due
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Clauses. 274 It has balked at treating noncriminal penalties as punishment under
the Eighth Amendment. 275 Prison discipline, however, seems more like
criminal punishment than a civil penalty 276 For one thing, the nature of the
penalty is often the kind of physical deprivation (e.g., solitary confinement)
277
associated with the criminal justice system.
A couple of caveats are unportant. First, Eighth Amendment doctrine will
make sense only if courts diligently link a purported punishment to a crime. In
the prison discipline context, that means linking a purported punishment to the
violation of prison rules that led to the disciplinary action. A glaring problem
with the Court's use-of-force decisions is that they show no attempt to connect a
prisoner's punishment to a crime, with the result that (1) Eighth Amendment
doctrine flies in the face of the common-sense understanding of pumshment; 278
(2) there is no chance for sensible analysis in terms of Eighth Amendment
doctrine; 279 and (3)it mischaracterizes and thus disrespects public intentions for
criminals. 280 The public voice rmght respond to Hudson v. McMiian281 by
saying: "Hey' We didn't say anything about a beating! Don't suggest that we
use beating as punishment! And Hey, come to think of it, don't tell us that we
can't use beating as punishment! This fellow committed armed robbery'
Remember the victims!" 282 Courts must therefore take care to explain
what they think is being punished and on what ground-barbarity,
process challenge to forfeiture-of-citizenslup provisions of immigration laws by mquing
whether forfeiture was punitive or merely regulatory in nature).
274 See, e.g., Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937,
1945-48 (1994) (evaluating double jeopardy challenge to tax on marijuana possession by
mquing whether tax was punitive in nature); United States v. Halper, 490 U.S. 435, 446-52
(1989) (evaluating double jeopardy challenge to civil penalty for submission of false medical
clamis by inquiring whether civil penalty was really punitive rather than civil m nature).
275
See Ingraham v. Wright, 430 U.S. 651, 664-71 (1977) (rejecting Eighth Amendment
challenge to corporal punishment of public school student).
276
See Helling v. McKinney, 509 U.S. 25, 41 n.2 (1993) (Thomas, J., dissenting) ("[lit
is at least arguable that wupping a prisoner who has violated a prison rule is sufficiently
analogous to mposmg a sentence for violation of a criminal law that the Eighth Amendment
is implicated.").
277 See, e.g., u. (citing Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (penalty of
whUppmg)).
278
See supra text accompanying notes 113-29.
279
See supra text accompanying notes 130-57
280
See supra text accompanying notes 158-66.
281 503 U.S. 1 (1992).
282
Actually, there did not appear to be any great public reaction to the Hudson decision.
But the case may not have gotten a full airing, and in any event it simply might not have been
the right case at the right time to draw public attention. See infratext accompanying note 341.
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disproportionality, or unpunishable crimes2 83-it
violates the Eighth
Amendment.
Second, the Eighth Amendment applies only where a regular governmental
process-due process-leads to a determination of culpability and a designation
of penalty. 28 4 Spontaneous use of force in retribution for violation of prison
rules thus is not punishment m the Eighth Amendment sense. 285 It is vigilantism
and may violate other legal protections, 286 but it is not punishment. As Justice
Thomas observed in his dissent m Hudson, a use of force "may be tortious, it
may be criminal, and it may even be remediable under other provisions of the
Federal Constitution, but it is not cruel and unusual punishment." 287
IV. PRESERVATION OF JUSTICE
The Eighth Amendment's reconstruction proposed in this Article is bound
283 See spra notes 130-32 and accompanying text.
284 See supra notes 10, 200, 221 and accompanying text.
285 This idea was discussed m Oft v. White, 813 F.2d 318 (11th Cir. 1987):
It seems important in this type of case to consider the distinction between, on the one
hand, "punishment" in the strict sense and, on the other, immediately necessary coercive
measures undertaken to obtain compliance with a reasonable prison rule or regulation.
Punishment m the stnet sense involves a penalty which is deliberately administered after
reflection and evaluation m response to conduct occurring in the past..
Punishment m
this sense is not designed to bring an ongoing violation to a halt.
Different considerations apply, however, to an immediate coercive measure
undertaken by a prison official, necessitated by a spontaneous violation of a prison rule
or regulation. In this scenario the wrongful conduct is currently taking place, and the
situation dictates that the prison official undertake immediate action to bring an end to
the violation or disturbance.
Id. at 322. The Ot court proceeded to apply the Supreme Court's standard Eighth
Amendment use-of-force doctrine to the conduct at issue, thus treating the conduct as
punishment despite recognizing that it was not punishment "in the strict sense." See ul. at
322-23 (quoting Wlutley v. Albers, 475 U.S. 312, 319 (1986)).
286 See infra text accompanying notes 292-323.
287
Hudson, 503 U.S. at 18 (Thomas, J., dissenting). Justice Thomas's coy reference to
"other provisions" of the Constitution contributes to the impression that he has a cramped
view of individual rights. He could have been much clearer about Ins confidence that the
prisoner had other avenues of relief, see, e.g., mfra text accompanying notes 292-323, but
chose to remain relatively silent, although, he did suggest the Due Process Clause in the more
limited context of a potential procedural due process claim. See Hudson, 503 U.S. at 28-29.
That is his prerogative as an author, but it inevitably added a line of defintion to his public
image.
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to set on edge anyone who cares about the progress of human rights under the
Constitution. But the goal here is not reactionary It is reformative. Indeed,
rights are stronger if they are well grounded as a matter of legal reasoning. The
2 88
rights of prisoners, m particular, could collapse under public scrutiny
Indeed, a movement is sweeping federal and state legislatures to cut back on
prison conditions2 89 and prisoners' lawsuits.2 90 The foundation needs shoring
up.
The reconstructed Eighth Amendment would rule out claims of cruel and
unusual punishment where prisoners' mjuries resulted from accidental or
otherwise irregular and unpredictable conditions of confinement. Some of the
288 Media reports incessantly inform the public of outrageous suits and verdicts. See,
e.g., Michael Hedges, JailhouseLawsuits: From Gym Floorto Dove's Blood; Pnsoners Will
Sue for Most Anythng-And Taxpayers Pick Up the Tab, S.F EXAm-ER, Sept. 24, 1995, at
A3 (reporting examples of frivolous suits and their burden and cost to the legal system); CBS
Evening News (CBS television broadcast, Aug. 28, 1995), available in 1995 WL 3028927
(same). Such reports are bound to generate dissatisfaction whether or not they reflect doctrinal
-defects, and criticism of the doctrinal defects could well follow.
289 In
addition to the No Frills Prison Act, see supra note 209, the Prison Litigation
Reform Act of 1995, passed as part of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, limits judicial remediation
of prison conditions m several ways: (1)directing courts not to order relief beyond what
federal rights minimally require, see ul. sec. 802(a), § 3626(a)(1)(a); (2) placing conditions on
court orders requiring release of prisoners, see ui.
sec. 802(a), § 3626(a)(3); and (3)capping
the duration of court orders at two years, id. sec. 802(a), § 3626(b). States are pursuing their
own changes. See Adam Nossiter, Malang HardTime Harder,States Cut JailTV and Sports,
N.Y TIm, Sept. 17, 1994, § 1, at 1 (reporting efforts of states "[flrom Califormia to
Florida" to cut back on prison conditions, making prison life "harsher than it has been m
years").
290 The Prison Litigation Reform Act of 1995, see supra note 289, limits prisoners in
numerous ways: (1) requiring exhaustion of administrative remedies, see Omnibus
Consolidated Rescissions and Appropriations Act of 1996, sec. 803(d), § 7(a); (2) mandating
dismissal of frivolous suits, see id. sec. 803(d), § 7(c); (3) requiring payment of filing fees
according to the prisoner's ability to pay, see id. sec. 804(a), § 1915(b); (4) requiring
screening of complaints before docketing, see id. sec. 805(a), § 1915(A); (5) barring tort
claims absent physical injury, see id. sec. 806(a), § 1346; and (6) penmitting revocation of
prisoners' good-time credits for filing malicious or harassing suits, see id. sec. 809(a),
§ 1932. Numerous state attorneys general have pressed for such legislation. See, e.g.,
Attorneys General Callfor Curbs on PrisonerLawsuits, N.J. LAw., Aug. 14, 1995, at 29.
Various states have pursued measures of their own. See, e.g., Barb Albert, State Seeks to End
Inmates' Frivolous Suits, INDiANAPouS STAR, Nov. 15, 1994, at Al (reporting plan by
Indiana's attorney general to limit prisoners' suits); Ashley Dunn, Flood of PrisonerRights
Suits Bnngs Effort to Limit Filings, N.Y TMEs, Mar. 21, 1994, at Al (reporting growth in
prisoners' suits and states' increasing efforts to limt them).
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injuries might be remediable under tort laws, criminal laws, and prison
disciplinary codes. Other injuries might simply be nobody's fault, or even the
prisoner's own fault, so that no legal remedy is available.
The greatest gap left by the reconstructed Eighth Amendment concerns
prison officials' use of force. The reconstructed Eighth Amendment would not
apply The Eighth Amendment should take a back seat to a far more pertinent
constitutional provision: the Due Process Clause.
Random violence or excessive force by government agents violates the
essence of due process: the fundamental constitutional right to a hearing before
infliction of a penalty. 2 91 If there was no Due Process Clause, perhaps we
would want to read the Eighth Amendment to apply, based on an idea that any
punishment without procedural protections is excessive (although an argument
could be made that summary punishment of a guilty person is not necessarily
either barbarous per se or disproportionate). But there is a Due Process Clause,
and it should be read alongside the Eighth Amendment. 292 When that is done,
the due process problem (complete absence of the rule of law) is recogmzable
as prior to the Eighth Amendment's more detail-oriented values (barbarity and
proportionality). Due process addresses whether any penalty may be inflicted,
while the Eighth Amendment addresses how to inflict a penalty that due process
permits to be inflicted. 293 Logically and legally, the Due Process Clause is the
appropriate constitutional basis for evaluating a spontaneous infliction like that
of the victimized prison guard who lashes back at a prisoner.
The Court passed up the opportunity to take this path when it decided
See Hicks v. Feiock, 485 U.S. 624, 632 (1987) ("[Cinmmal penalties may not be
mposed on someone who has not been afforded the protections that the Constitution requires
of such criminal proceedings
"); Pervis v. LaMarque Indep. Sch. Dist., 466 F.2d 1054,
1058 (5th Cir. 1972) (stating that a "basic tenet of due process is the notion that punishment
cannot be imposed before a hearing is given"); TamE, supra note 243, § 10-14, at 731
("IT]he right to a fair trial before an impartial judge is a right whose violation should be
deemed to be complete when punishment has been meted out by a state official without any
trial, or when a trial has been held that did not meet basic standards of fairness.") (footnote
omitted). Summary punishment is permissible m very limited situations. See, e.g.,
International Union, United Mine Workers of Am. v. Bagwell, 114 S. Ct. 2552, 2556-61
(1994) (discussing range of contempt proceedings, from minor proceedings m wich
summary findings are permitted, to serious proceedings involving indirect contempts for
wich due process requires fuller observance of the Constitution's criminal procedure
protections). Summary use of force m prison is sometimes necessary to restore order, but
never to punish.
292 See
mfra text accompanying notes 328-37 (advocating emphasis on structural
integrity m constitutional interpretation).
291
293 See supranotes 10, 200, 221.
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Whitley v Albers. 294 Pnor decisions had not foreclosed application of the Due
Process Clause in the prison context. For instance, m Screws v. United
States,295 the Court applied the Clause to police officers who had beaten a
detainee to death. 296 The Court gave no hint that convicted prisoners occupied a
lesser place than detainees in the realm of due process. Indeed, the Court of
Appeals for the Second Circuit subsequently used the Due Process Clause to
handle a prison use-of-force clann in Johnson v Glick.297 Yet the prison
context proved to make all the difference when the Supreme Court in Whitley
finally considered use of force against a prisoner. The plaintiff in Whitley raised
claims under both the Eighth Amendment and the Due Process Clause. 298 But
the Court analyzed the case primarily under the Eighth Amendment 299 and then
quickly disposed of the due process claim because the Due Process Clause
"affords . no greater protection" than the Eighth Amendment in such
cases. 30° That analytical conflation haunts the Court's decisions still.
The reasoning of Albnght v Oliver30 1 further assures that a due process
claim would be rejected under current doctrine but available if the Court
adopted a truer definition of punishment. The Court there rejected a due
process clan for arrest without probable cause because the plaintiff could
have-and according to the Court, should have-brought the claim under the
Fourth Amendment. 30 2 The Court thus "reserv[ed] due process for otherwise
294 475 U.S. 312 (1986).
295 325 U.S. 91 (1945).
296 See id. at 107
297 481 F.2d 1028 (2d Cir. 1973). The Johnson court identified factors to be considered
m deciding whether a use of force violated substantive due process:
In determining whether the constitutional line has been crossed, a court must look to
such factors as the need for the application of force, the relationship between the need
and the amount of force that was used, the extent of injury inflicted, and whether force
was applied m a good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.
Id. at2 1033.
98
See Whitley, 475 U.S. at 326-27
See Id. at 318-26.
3 1
0 Id. at 327
301 114 S. Ct. 807 (1994).
302
See Id. at 813. The Court explained: "Where a particular amendment 'provides an
explicit textual source of constitutional protection' against a particular sort of government
behavior, 'that Amendment, not the more generalized notion of substantive due process, must
be the guide for analyzing these claims."' Id. (quoting Graham v. Connor, 490 U.S. 386, 395
(1989) (internal quotation marks ormtted)).
2 99
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PUNISHMENT
homeless substanti[ve] clais."30 3 In terms of current doctrine, Albnght gives
reason to doubt the suggestion in Whtley that a due process claim for use of
force would be on equal terms with an Eighth Amendment claim. But if the
Court adopted a truer definition of punishment, any actions forced out of their
Eighth Amendment home would not be homeless; Albright assures that the Due
Process Clause would await.
The general jurisprudential principle of Albright is sound; courts should
address legal issues using the most directly applicable legal provisions. 304 The
problem in the Eighth Amendment context is that the Eighth Amendment is not
the most directly applicable provision; it deals with punishment and should not
be applied to nonpumshments. The Due Process Clause is more directly
applicable; it deals with nonpumshments.
305
An open question would be whether the precise basis for such claims
should be procedural due process or substantive due process. 3° 6 The most
303
Id. at 820 (Souter, J., concurring).
304 For good measure, I should note that the result in Albnght may be wrong even if the
general jurisprudential principle is correct. Indeed, the application of the principle to the
relationslup between the Due Process Clause and the first ten amendments is fundamentally
flawed and unjustly formalistic. The Bill of Rights applies to the states only through the
doctrine of incorporation under the Fourteenth Amendment. See generally RIcHARD C.
CORTNER, THE SupREmE CouRT AND THE SECOND BIL OF RiGrs (1981) (detailing history
of incorporation doctrmne). As the dissent in Albnght explaned,
[Tihe plurality opinion seems to rest on one fundamental misunderstanding: that the
incorporation cases have somehow "substituted" the specific provisions of the Bill of
Rights for the "more generalized language contained in the earlier cases construing the
Fourteenth Amendment." In fact, the incorporation cases themselves rely on the very
"generalized language" the [plurality opinion] would have them displacing.
Albnght, 114 S. Ct. at 830 (Stevens, J., dissenting) (citation & footnote ormitted). In light of
the incorporation doctrine, it would be most logical to require that clais be brought under
the Due Process Clause rather than under particular provisions of the Bill of Rights. The
essence of the doctrine is that most (but not all) of the Bill of Rights applies to the states as
substantive elements of due process. By itself, the Bill of Rights remains inapplicable to the
states. Why should-indeed, how can-a state plaintiff base an action directly on a Bill of
Rights provision? Yet that is exactly what the Albright Court required.
305 Indeed, Professor Philip Gentry, in a draft paper given at Columbia University,
has taken the position that custodial care principles routed in the Due Process Clause are
the best measure of not just uses of force but prison conditions generally See Philip M.
Gentry, Confusing Punishment with Custodial Care: The Troublesome Legacy of Estelle
v. Gamble, 21 Vt. L. REv (forthcoming 1996).
306 For an explanation of these concepts, see ThE OxFoRD COMPANiON TO THE
SUPRMm CouRT OF THE UNITED STATES 236-39 (Kermit L. Hall et al. eds., 1992).
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sensible approach would be to hold procedural due process applicable to
inflictions that purport to be pumshment but lack authorization from a fair
hearing and substantive due process applicable to inflictions that are not only
unauthorized but do not even purport to be punishment. 30 7 Where the facts
could support either characterization, a plaintiff would want to include both
308
kinds of claims in his complaint.
Alternatively, the Court could extend the Fourth Amendment, which
applies to use of force outside prison,30 9 to use of force inside prison. The
3 10
Court's reluctance to do so is not founded on any compelling principle.
Cf. ud. at 236 ("The notion of substantive due process
place[s] substantive limits
on official power, whereas procedural due process is concerned solely with the manner m
which the government acts."). This is the path the Supreme Court failed to clear m Whitley.
Recall the Court's reference to "conduct that does not purport to be punishment at all," and
its conclusion that the Due Process Clause was no more pertinent than the Eighth
Amendment. See Whitley v. Albers, 475 U.S. 312, 319, 327 (1986).
308 A plaintiff might prefer the substantive due process route because of federalismbased limitations on procedural due process claims. See infra text accompanying note 313
(explaining Court's holdings that availability of postdepnvation remedies under state law may
bar federal procedural due process claim).
309 See Graham v. Connor, 490 U.S. 386, 394-95 (1989) ("Where, as here, the
excessive force claim arises m the context of an arrest or investigatory stop of a free citizen, it
is most properly characterized as one revoking the protections of the Fourth
Amendment
"); Tennessee v. Garner, 471 U.S. 1, 11 (1985) (applying Fourth
Amendment to invalidate state law authorizing use of deadly force to apprehend a
nondangerous fleeing suspect). See generally R. Wilson Freyermuth, Rethnlang Excessive
Force, 1987 DuKE L.J. 692 (analyzing doctrinal developments in application of Fourth and
Eighth Amendments and the Due Process Clause to excessive force claims). It is already
questionable to apply the Fourth Amendment to all unjustified uses of force outside prison. A
beating is not necessarily a seizure. But it is closer to a seizure than it is to a "punishment."
310 Compare Freyernuth, supra note 309, which states:
307
One rightly can wonder why a prisoner should not [in addition to Eighth Amendment
rights] retain a reasonable expectation of privacy in his bodily integrity and therefore
enjoy fourth amendment protection from excessive physical force m cases in which
prison officials have no legitimate punitive or disciplinary purpose for using force. It
seems logical to treat these instances of force as seizures rather than punishment. Tis
would make little practical difference, however, because heightened deference to prison
officials is unnecessary under Whit/ey when the force has no legitimate punitive or
disciplinary purpose. In such a case, an eighth amendment standard like the Estelle
"deliberate indifference" standard is required, and in practice such a standard would be
almost indistinguishable from the fourth amendment's reasonableness inqury.
Id. at 704 n.74 (citations onutted). Hudson v. McMillian, 503 U.S. 1 (1992), disproves the
assumption that a deliberate indifference standard would apply rather than a malicious-and-
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Prisoners generally retain their constitutional rights, although the nature of
imprisonment justifies significant curtailments. 3 11 Excessive or otherwise
unauthorized uses of force would not count among the justifiable curtailments,
so prisoners would have a Fourth Amendment remedy if the Court would only
let the Amendment into prison.
Next, as Justice Thomas observed in his Hudson dissent, prisoners may
have state law remedies. 3 12 This is especially relevant to the extent that
prisoners' claims are understood as grounded upon procedural due process. The
Court has held the availability of adequate postdepnvation state law remedies to
313
compensate for the lack of a predeprivation hearing.
Last but not least, the reflexive appeal to the Constitution-no matter which
provision-distracts from what might be the most effective remedy of all:
criminal prosecution of outlaw officials. As Professor Joseph Goldstein
explained in responding to media criticism of Justice Thomas's Hudson dissent,
[The] guards should have been held accountable under Louisiana's Criminal
Code. They should have been prosecuted for second-degree battery, which
carries with it up to five years' imprisonment, with or without hard labor.
Instead, the Louisiana Attorney General defended Mr. Hudson's assailants
against his claim that their conduct was cruel and unusual punishment in
violation of the Eighth Amendment.
Prison communities are not meant to be sanctuaries beyond the reach of
the criminal law. Those responsible for the administration of criminal justice
must cease treating the law as if its jurisdiction stops at the prison gate-as if
314
those inside are not to be protected and held as accountable as those outside.
sadistic standard. See Ad. at 6-7 Moreover, I disagree with the notion that a "practical
difference" should dictate the way we read the Constitution.
311 See Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) ("[Cjonvicted prisoners do not
forfeit all constitutional protections by reason of their conviction and confinement in
[But t]he fact of confinement as well as the legitimate goals and policies of the
prison.
penal institution limits these retained constitutional rights.") (citations omitted).
312 See Hudson, 503 U.S. at 18, 28-29 & n.5 (Thomas, J., dissenting).
313 See Parratt v. Taylor, 451 U.S. 527, 538-41 (1981), overnded in part on other
grounds by Darnels v. Williams, 474 U.S. 327 (1986); see also Zinermon v. Burch, 494 U.S.
113, 132 (1990) ("[W]here a predepnvation hearing is unduly burdensome in proportion to
the liberty interest at stake, or where the State is truly unable to anticipate and prevent a
random depnvation of a liberty interest, postdepnvation remedies might satisfy due process.")
(citation omitted); TRIBE, supra note 243, § 18-4, at 1703-05 (explaining rationale for
determining whether in constitutional provision is susceptible of violation by a government
official acting individually).
314 Joseph Goldstein, Thomas Wasn't Wrong in Beating Case, N.Y TI ME, Mar. 20,
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The lawlessness of prisons is nothing new 315 Yet prosecution of prison guards
has a ring of novelty to it. Perhaps that is because prosecutorial solutions seem
naive-putting one wolf m charge of another-much like prosecutorial solutions
to police brutality 316 Worse, prison crime may be in a class of its own.
Prosecutors not only harbor sympathy for the perpetrators as in police brutality
cases, but may harbor a categorical antagonism toward the victims that is not
present outside prisons.
If true, this suggests another constitutional basis for protecting prisoners:
the Equal Protection Clause. Prosecutors enjoy broad discretion. 3 17 But that
discretion "is not 'unfettered. Selectivity m the enforcement of criminal laws
is . subject to constitutional constraints.' In particular, the decision to
prosecute may not be 'deliberately based upon an unjustifiable standard such as
,318 Prisoners may not be a
race, religion, or other arbitrary classification
suspect class for equal protection purposes, 3 19 but neither do they "forfeit all
equal protection rights upon incarceration."320 It is quite possible that a
categorical refusal to prosecute crimes against prisoners would deny prisoners
the equal protection of the laws based on an arbitrary classification.
Numerous protections thus are available to address the use of force in
prison. The Eighth Amendment is least apposite of all. Indeed, a true Eighth
Amendment analysis is not even performed when the Amendment is used to
resolve use-of-force claims, because the principles of barbarity and
1992, at A32.
315 For a collection of incidents predating the federal courts' involvement m prison
administration, see Hirschkop & Millemann, supra note 210, at 795-812.
316 See generally Peter L. Davis, Rodney King and the Decriminalizationof Police
Brutality in America: Direct and Judicial Access to the Grand Jury as Remedies for
Victims of Police Brutality When the ProsecutorDeclines to Prosecute, 53 Mn. L. REv
271, 288-96 (1994) (emphasizing importance of cnminal prosecution to reduction of
police nusconduct but explaining prosecutors' reluctance to bringing such cases).
317 See Wayte v Umted States, 470 U.S. 598, 608 (1985).
3 18
Id. (quoting United States v Batchelder, 442 U.S. 114, 125 (1979), and
Bordenkircher v Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v Boles, 368 U.S.
448, 456 (1962))) (citations and second internal quotations marks omitted).
319 See Sarah Botz & Robert C. Scherer, Prisoners' Rights, 84 GEo. L.J. 1465,
1494 n.2975 (1996) (collecting cases).
320
Id. at 1494; see also Barry R. Bell, Note, Prisoners' Rights, Institutional
Needs, and the Burger Court, 72 VA. L. REV 161, 190 n. 193 (1986) ("Prisoners are
responsible for their own incarceration, and are not perceived as a 'suspect class.' At
the same time, however, they are a peculiarly 'discrete and insular' minority poorly
protected by the political process, and thus require a measure of judicial protection."
(quoting United States v Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938))).
PUNISHAMNT
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1669
proportionality do not serve the agenda of remedying the wrong. 321 The Eighth
Amendment's irvocation thus seems result oriented rather than constitutionally
founded. A strained interpretation might be more defensible if no other
constitutional provisions were applicable. 322 Whatever the answer to that
difficult question of constitutional interpretation, its converse is surely true: a
strained interpretation is indefensible if other constitutional provisions are
applicable. 323 The Eighth Amendment's extension to nonpunitive uses of force
unfortunately fits that description.
V. DOES iT REALLY MATrER?: A FEW REMARKS ON JUDICIAL
LEGITIMACY (AND A NOTE ON THE LAWS OF GRAVITY)
Do we care how courts reach decisions, as long as the results are right?
Why is it important to reconstruct the Eighth Amendment and introduce the
Due Process Clause when the Eighth Amendment as presently construed (or
misconstrued) does the job alone? The Due Process Clause might better support
Keith Hudson's claim, 324 but the Supreme Court's invocation of the Eighth
Amendment might not do any harm. 325 It is not as if the Eighth Amendment
bears no relation to the treatment of prisoners. Perhaps doctrinal revision is
important only when correct results are reached in hideously wrong ways (for
example, if the Court held that Hudson's beating violated his Third Amendment
right against quartering soldiers in peacetime3 2 6). The Eighth Amendment's
application to use-of-force cases is not so blatantly off the wall. It is more a
question of Ockham's Razor: Should the Court use the most directly applicable
provision?327
These concerns are nothing new Professor Charles Black noted with
321
See supra text accompanying notes 130-57, 180-84.
322 See mfra text accompanying note 337
323
See supra text accompanying notes 304-08; infra text accompanying notes 330-38.
v. McMillian, 503 U.S. 1 (1992); supra text accompanying notes 291-
324 See Hudson
308.
325 See, e.g., Hudson, 503 U.S. at 4-12 (applying Eighth Amendment to plainly
wrongfiul treatment of prisoner).
326
See U.S. CoNsr. amend. Im("No Soldier shall, m time of peace be quartered in any
house, without the consent of the Owner, nor m time of war, but m a manner to be prescribed
by law.").
327
See supra text accompanying notes 304-05. Another possibility is that the Court's
consignment of all prisoner clamis to the Eighth Amendment serves a serious concern about
constitutional decisionmaking: that the special conditions of prison result m weaker
interpretations of individual rights, wich would dilute the rights of free citizens if the same
rights and doctrines applied to prisoners and free citizens alike. The flipside, of course, is that
prisoners' limited rights are more easily diluted if isolated.
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respect to McCulloch v Maryland3 28 that "judgment [was] reached not
fundamentally on the basis of that kind of textual exegesis which we tend to
regard as normal, but on the basis of reasoning from the total structure which
the text has created." 329 The reasoning advanced in this Article is less ambitious
than that of Professor Black: closer to the text (at least in the context of Eighth
Amendment doctrine) but responsive to the claims of structure.
Professor Laurence Tribe's recent call for taking text and structure
seriously is instructive. 330 He likens the Constitution to a map of a solid object
and offers several rules for "topologically sound modes of constitutional
interpretation. 331 First, the absence of a limiting word-such as "only"-does
not indicate that the object of description is boundless; 332 here, the Eighth
Amendment should be understood to apply to what it says-pumshment-and
nothing more. Second, "constitutional topology counsels against
ignoring
333
how the surfaces or edges of a complex structure connect and intersect";
here, the Eighth Amendment's boundaries must be recognized and respected in
a constitutional landscape that also comprises the Fourth Amendment and Due
Process Clause. Finally, in all fairness, Professor Tribe limits his prescription to
the architecture of the Constitution-its framework for government-rather than
abstract declarations of basic rights that may deserve greater intergenerational
flexibility 334 But the case for topologically sound interpretation can sometimes
be extended to basic rights provisions. Surely such provisions are subject to the
idea that "certain interpretive moves are more analogous to tearing than to mere
stretching or bending" 335-like applying the Third Amendment's right against
quartering soldiers in peacetime to questions of prison violence. 336 This is
particularly so where other provisions can protect the basic right in ways
faithful to textual and structural-topological-considerations. The map of
constitutional space would thus be different if there were no Fourth Amendment
or Due Process Clause. Perhaps a broader understanding of punishment would
be warranted to fill the gaps in that map. 337 In the end, the value of this Article
328 17 U.S. (4 Wheat.) 316 (1819).
329
CHARLs L. BLACK, JR., STRucruF AND RELAnoNsHP IN CoNsrITUToNAL LAW
15 (1969).
330 See Tribe, supra note 99, at 1235-49.
331 Id. at 1237.
332 See Id.at 1239-45.
333
Id. at 1248.
334 See Id. at 1247
335 Id. at 1237
33 6
See supra note 326 and accompanying text.
33
7 See Tribe, supra note 99, at 1239 (describing the Constitution as a governmental
map that necessarily is incomplete in its representations and warning against mstaklng gaps m
that map for absence of constitutional meaning); cf BLACK, supra note 329, at 33--66
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depends on whether we care how courts reach decisions and"on whether we
care that courts resolve issues using the most directly applicable provisions.
The proposals made here for Eighth Amendment doctrine are accordingly
aimed at the decisionmaking process as much as at the results. Of course, the
impact on results cannot be ignored; the malicious and sadistic standard now
applicable in Eighth Amendment use-of-force cases may be more demanding
than the standard that would apply under an alternative approach (for example,
the "objective reasonableness" standard under a Fourth Amendment
approach 338). But even under an Eighth Amendment standard, the Whitleys and
Hudsons of the world still could prove their clanis in most cases. Much of the
concern is therefore process oriented, and although that may seem pedantic,
there are two reasons not to ignore it. The first is the old slippery slope. A poor
decisionmaking process may yield the right results in some cases, but (unless
we are process nihilists) must pose a threat to getting the right results in other
cases. Those other cases might not even involve the Eighth Amendment;
cavalier judicial decisionmaking in any area can spill over into other areas. The
effects might be hard to trace, but the basic idea is simple: loose judicial
reasoning can be a habit of mind rather than an isolated fall from grace.
Anyone who has ever summed up a judge as "too liberal" or "too
conservative" should agree.
Second, and perhaps more important, decisionmaking processes cannot so
easily be dismissed as "procedural." 339 They enjoy the status of procedures
because there is value in adhering to them. That value is substantive. It
embodies a perceived regularity, trustworthiness, and legitimacy in
decisionmaking. Countermajoritaran protections like the Eighth Amendment
require vigilant observance, but in the long run a careless vigilance can do
more harm than good. Opponents can collect a handful of anecdotes and whip
up a backlash. 34° Maybe the Bill of Rights would not be amended, but another
round of statutory limitations on prisoners' rights is not hard to imagine.
The danger of backlash against prisoners' rights is especially significant
('mquirng whether individual liberties would be protected m absence of Due Process and
Equal Protection Clauses of Fourteenth Amendment and concluding that some protection
rmght still have been inferred from status and relationships established elsewhere m
Constitution).
338
See Graham v. Connor, 490 U.S. 386, 388 (1989); supra notes 309-11 and
accompanyimg text.
339
See Laurence H. Tribe, Seven Deadly Sins of Straining the ConstiutionThrough a
Pseudo-Scientific Sieve, 36 HAsrNGs L.J. 155, 157-58 (1984) (urging respect for the
substantive value of process, i.e., the "independent value of respecting personal dignity and
security m the means that government uses to achieve its ends").
340 See Landry, supra note 2, at 253-54 & n.142.
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because prisoners are among the most disfavored classes of citizens (and
justifiably so). Keith Hudson's victory may have passed without popular
controversy, 341 but that might not be the case next time. For one thing, the full
facts about Hudson-his arguing with guards before the beating and the details
of his original crime of armed robbery-could lead observers to rethink the
degree of injustice done to him. But more important, other successful plaintiffs
may be far less sympathetic, and their Eighth Amendment victories could
generate outrage against the system. When that day comes, the judiciary's
elaboration of the Constitution had better be well reasoned.
Picture an investigative journalist's expos6 on outrageous sums paid to the
most despised criminals for minor injuries sustained after misbehavior in
prison. Then the capper: the rules of evidence kept the juries awarding those
damages from knowing what the prisoners had done to wind up in prison. The
juries saw only clean-cut plaintiffs in nicely pressed suits and heard only about
how the plaintiffs did a little something wrong and suffered prison guards' wild
overreaction.
Maybe the journalist will talk about Eng v Scully 342 George Eng was
convicted of murder in 1967 343 He was paroled five years later and was
convicted of murder again in 1977 344 While in prison, Eng compiled a
disciplinary record that included confrontations with corrections officers and
other inmates. 345 In 1983, he sued several prison officials, and claimed that
they used and permitted the use of excessive force against him in violation of
the Eighth Amendment. Specifically, Eng alleged that while he was being
moved from one prison to another, a corrections officer "struck at" and
"directed profanities and epithets" at Eng. 346 The officers denied that but did
347
not dispute the rest of the allegations.. Eng cursed at and spit on the officer,
and the officer responded with force.348 Before trial on Eng's claim, the district
court ruled that the jury would not learn that Eng was a murderer (much less a
repeat murderer), 349 or about his prison disciplinary record.350 They would see
only a clean-cut man in a suit. Based on the results in similar cases, the State of
341 See Hudson v. McMillian, 503 U.S. 1, 12 (1992); see also supra text accompanying
note 282.
342 146 F.R.D. 74 (S.D.N.Y 1993).
343 See Id. at 78.
344 See Id.
345 See Id. at 77
346 Id.
347 See ud.
348 See Id.
34 9
350
See id. at 78-79.
See id. at 77-78.
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New York settled before trial, paying Eng the sum of $60,000.
The point of recounting that case is not to criticize the court's evidentiary
rulings, which were well within the rules of evidence. Nor is the point to
criticize the notion that violent criminals retain certain rights and may seek legal
redress. 351 The point is simply to emphasize the senselessness of labeling such
altercations "punishment" and to suggest that the danger of public reactionever present when such unpopular plaintiffs are at issue-s greater when the
rationale lacks a solid anchor in the text of the Constitution. The public, after
all, can read. Was Eng being "pumshed" 9 If so, what was he being punished
for? And is it cruel and unusual punishment for a double murderer to be struck?
Such premises bait the public's common sense and its tolerance for
countermajoritanan protections. Ultimately, that undermines the legitimacy of
the judicial system.
So how could we have arrived at this place? Perhaps an impulse to do good
explains it. But surely Justices have resolved many cases against their personal
sensibilities. 352 And there is no reason to think that prisoners occupy an
irresistible soft spot in the Justices' hearts; the Court has in other contexts
energetically restricted prisoners' ability to bring claims. 353 The explanation
seems to be a mere slackening of attention to the constitutional text.354 In a
351 Eng might well have recovered the same amount if his claim was based on the Due
Process Clause or some other alternative advanced in this Article.
352 See, e.g., Texas v. Johnson, 491 U.S. 397, 420-21 (1989) (Kennedy, J., concurring)
(expressing personal disagreement with flag burning but holding it to be protected speech
nonetheless).
353 See, e.g., Felker v. Turpm, 116 S. Ct. 2333, 2340 (1996) (upholding statutory
restrictions on successive petitions for writ of habeas corpus); Felker v. Turpm, 116 S. Ct.
1588, 1588 (1996) (ordering expedited review); McClesky v. Zant, 499 U.S. 467, 493-96
(1991) (holding that failure to raise a claim in first petition for writ of habeas corpus bars
subsequent petitions absent cause and prejudice); Kathleen Patchel, The New Habeas, 42
HASINGs L.J. 941 (1991) (analyzing limits that the Burger and Rehnquist Courts placed on
habeas corpus); Martha Hallisey, Case Comment, To Habe or Not to Habe: Curtailing the
Writ of Habeas Corpus in McCleskey v. Zant, 19 N. ENG. J. ON CR.
& CIV
CONFINEMENT 397, 425 n.209 (1993) (collecting cases limiting habeas corpus).
354 Judges do not-and should not-mechanically apply a legal text to a set of facts.
They properly consider large-scale (precedent-setting) principle, small-scale (case-specific)
results, and several kinds of historical context (legislative, social, and intervening). Other
considerations or sets of considerations could be added to or substituted for this set if it were
not to the user's satisfaction. See, e.g., PHILIP BOBBrrr, CONSITrUTIONAL INTERPRErATION
12-13 (1991) (identifying six modalities of constitutional interpretation: lustorical, textual,
structural, doctrinal, ethical, and prudential); R. Randall Kelso, Styles of Constitutional
Interpretationand the Four Main Approaches to Constitutional Interpretation in American
Legal History, 29 VAL. U. L. REv 121, 125-50 (1994) (identifying four sources of
meaning-contemporaneous sources of meaning, subsequent events, noninterpretive
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nation with limited tolerance for judicial creativity, 355 the Constitution itself
commands greater respect. Don't say I didn't warn you.
VI. CONCLUSION
The current majority definition of "punishment" under the Eighth
Amendment extends to anything that transpires within prison walls, provided
that individual officials acted with a requisite level of subjective intent (criminal
recklessness in prison-conditions cases and malicious and sadistic harm in useof-force cases). At extremes on either side, those who focus on prisoners'
experiences argue against any intent requirement, and those who focus on the
strictures of sentencing argue against any application of the Eighth Amendment
to conditions or events inside prisons. None of these definitions is satisfying.
This Article recommends a new course that appreciates the independent
vitality of the Eighth and Fourth Amendments, the Due Process Clause, and
plain old tort and criminal laws. The Eighth Amendment should be restored as
a bold peak in the constitutional range, prohibiting excessive penalties inflicted
pursuant to regular governmental processes in response to specific crimes. The
considerations, and individual bias-and identifying subcategories of each).
Judicial legitimacy depends on properly prioritizing these considerations, without at the
same time oversimplifying them. The operation can be analogized to the laws of gravity. The
gravitational attraction between two bodies is directly proportional to their masses and
inversely proportional to the distance between them. The judicial considerations can be
understood as having their own masses and distances. Text has the greatest mass; history and
large-scale principle come next; and last and least come small-scale results. (Again, different
sets of considerations could be plugged in here and assigned their own masses according to
the set-maker or set-user's jurisprudential beliefs.) Each is a closer distance to the case to the
extent it gives clear guidance. The force of each consideration's attraction depends on its mass
and its distance to the facts, and the result is reached by summing the forces.
As applied to the Eighth Amendment, this model shows that the Justices have
underestimated the force of text and large-scale principle and relied upon weaker forces of
small-scale results. The text is close to these cases because of the meaning of punishment.
Large-scale principle is also close because of the doctrinal coherence that the Court has
foregone. History would be close as well, but the country's historical disuse of-and
disrespect for-individual rights makes history a suspect criterion in such cases. That leaves
the Court to rely on the "need" to avoid "shocking" case-specific results. But that low-mass
consideration is also distant from these cases because of the availability of alternative
remedies.
355 See, e.g., Danel Wise, Kaye Warns Judiciary Is Threatened: Expresses 'Grave
Concern' About Recent Criticism, N.Y L.J., Feb. 22, 1996, at 1 (reporting speech by Chief
Judge Judith S. Kaye of New York Court of Appeals about various recent threats to judicial
independence).
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Fourth Amendment, the Due Process Clause, and tort and criminal laws should
stand as great massifs against unreasonable or extralegal action wherever found.
Here is the prescription:
(1)Redefinition of punishment under the Eighth Amendment to
include only-and all-pains that are inflicted in response to crime and
pursuant to the ordinary course of governmental and prison
administration. The ordinary course of administration includes: (a) the
legislature's establishment of sentencing ranges, (b) the courts' exercise of
discretion at sentencings, and (c) prison officials' exercise of permissible
discretion, consistent with laws and regulations existing at the time of their
actions, in administering prison sentences designated in response to crimes and
in administering discipline in response to prison misconduct. The ordinary
course of administration does not include prison (or other) officials' abuses of
discretion, such as withholding care guaranteed by law or regulation, or
condoning extralegal acts such as the use of force.
(2) Proper Eighth Amendment analysis in those cases when use of
force qualifies as punishment. Proper analysis requires identification of the
crime for which the punishment is inflicted and is limited to the three settled
grounds for Eighth Amendment violation: barbarity, proportionality, and
unpunishable crimes.
(3) Application of the Ex Post Facto Clause to drastic changes in
prison conditions.
(4) Reinterpretation of the Due Process Clause and Fourth
Amendment to reach inside prison walls and protect prisoners from abuses
of discretion and extralegal acts, just as the same provisions protect the
general population from such abuses and acts.
(5) Criminal prosecution of truly lawless conduct by prison guards
and application of the Equal Protection Clause if prosecutors categorically
refuse to pursue cases in which prisoners are the victims.
This prescription is a tall order, but it has one lasting virtue: it is truest to
the text and structure of the Constitution. Perhaps the Justices know full well
that they are playing fast and loose with Eighth Amendment doctrine to simplify
the task of judging and prison administration. If so, then they should at least
admit it. If so, then the public is entitled to hear the Court say- "Truly following
the Eighth Amendment would be too much of a pain m the arse, so we're just
going to do some rough justice here, if you don't mind." Instead, the Court
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pretends to follow the requirements of the Constitution. 356 Don't you believe it.
356 Cf. Martin Shapiro, Judges as Liars, 17 HARv. J.L. & PUB. POL'Y 155, 156 (1994)
(asserting ireverently that judges inevitably engage in lawmaking and just as inevitably deny
doing so).